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Babar v The Queen

Babar v The Queen

Case [2022] VSCA 122 23 June 2022

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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’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Babar v The Queen

Details

AGLC: Babar v The Queen [2022] VSCA 122
Case: [2022] VSCA 122
Decision Date: 23 June 2022

CaseChat Overview and Summary

Babar appealed against his sentence for raping a customer while working as an Uber driver. The Supreme Court of Victoria dismissed the appeal, holding that the original sentence was not manifestly excessive and that the judge had appropriately considered the time spent in immigration detention and other mitigation factors. The respondent, the Attorney-General for the State of Victoria, submitted that the sentence was within the range of appropriate penalties for such a serious crime and that the judge had adequately taken into account all relevant factors. The court found that the sentence was not manifestly excessive and that the judge had appropriately considered the defendant's time spent in immigration detention and other mitigating factors. The court held that the sentence was within the range of appropriate penalties for such a serious crime. The court considered the cases of Sahhitanandan v The Queen [2019] VSCA 115 and Underwood (a pseudonym) v The Queen (No 2) [2018] VSCA 87 in reaching its decision. The appeal was dismissed.

Orders