| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0110 |
| HAFIZ MUHAMMAD FARID BABAR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST and MACAULAY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 June 2022 |
| DATE OF JUDGMENT: | 23 June 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 122 |
| JUDGMENT APPEALED FROM: | [2021] VCC 180 (Judge C J Ryan) |
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CRIMINAL LAW – Appeal – Sentence – Rape – Uber driver digitally penetrated customer in rear of vehicle – Sentenced to 5 years’ imprisonment with 3 years non-parole – Whether manifest excess – Whether judge gave insufficient weight to 698 days spent in immigration detention and mitigation factors – Sentence within range – Appeal refused – Sahhitanandan v The Queen [2019] VSCA 115 and Underwood (a pseudonym) v The Queen (No 2) [2018] VSCA 87 considered.
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| Counsel | |||
| Appellant: | Mr J O’Connor and Ms A Renieris | ||
| Respondent: | Mr J McWilliams | ||
Solicitors | |||
| Appellant: | Victoria Legal Aid | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
T FORREST JA
MACAULAY JA:
On 10 February 2021 the appellant, now aged 34 years, pleaded guilty to one charge of rape. Following a plea hearing, the appellant was sentenced on 26 February 2021 as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Rape (contrary to Crimes Act 1958 s 38(1)) 25 years 5 years N/A Total Effective Sentence: 5 years’ imprisonment Non-Parole Period: 3 years’ imprisonment Pre-sentence Detention Declared: 44 days Section 6AAA Statement: Total Effective Sentence: 7 years’ imprisonment
Non Parole-Period: 5 years’ imprisonment
Ground of appeal
On 29 March 2022, the appellant was granted leave to appeal on the following ground:
The sentence and non-parole period imposed are manifestly excessive.
Circumstances of the offending and procedural background
In the evening of 15 September 2018, the complainant attended a gathering in Mordialloc. She consumed approximately five standard drinks. With a group of her friends, the complainant then attended a party in Hughesdale. She did not remain there long and a friend ordered an Uber for her to travel home to her East Bentleigh residence. At about 11:00 pm, the Uber arrived driven by the appellant. The complainant was assisted to the rear of the vehicle and was affected by alcohol.
At some stage during this trip, the appellant pulled the vehicle over and said to the complainant, ‘Do you want the ride for cheaper? If you do something for me, I can make the ride cheaper’. The complainant refused this invitation. The appellant then alighted the vehicle and re-entered through a rear door. He sat next to the complainant and repeated his invitation which was persistently refused. He then slid his hand inside the complainant’s clothing and underwear and inserted his fingers into the complainant’s vagina. The complainant went to leave the vehicle at which the appellant took hold of her left leg and told her to stay in the car.
The complainant managed to depart the vehicle and ran to a nearby house. She immediately stated to the occupant that a ‘creepy guy’…
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- AGLC
- Babar v The Queen [2022] VSCA 122
- Case
- [2022] VSCA 122
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