Babar v The Queen

[2022] VSCA 122

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:

1. 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

1. 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

1. 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.

2. 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.

3. The complainant managed to depart the vehicle and ran to a nearby house. She immediately stated to the occupant that a ‘creepy guy’ was ‘touching me’ and that that person was the Uber driver. The complainant was distressed and at about midnight the matter was reported to police. She was medically examined at about 3:00 am which revealed a bruise to her right inner thigh and a bruise to her right knee.

4. On 17 September 2018 the appellant was interviewed by police. He denied the offending and stated that the complainant had initiated relatively limited sexual contact with him and he refused her advances. He said the complainant was ‘a little drunk, but not that drunk’. He said the complainant was not crying when she left the vehicle and was ‘just normal’. He denied touching or penetrating her vagina.

5. The appellant provided his DNA to police. DNA analysis was conducted on samples collected from the complainant and the appellant. The results indicated very strong support for the appellant’s DNA being on the outside and/or inside of the complainant’s vagina.

6. The appellant was charged on 4 January 2019 with rape and remanded in custody. On 1 February 2019 he was granted bail. As a consequence of being charged the appellant’s student visa was cancelled. From 14 March 2019 until 9 February 2021 the appellant was detained in immigration detention. Since then he has remained in custody.

7. As at the date of sentence the appellant had spent 44 days in pre-sentence detention. Additionally he had spent 698 days in immigration detention.

The plea hearing

1. Counsel for the appellant conceded the seriousness of the offending, acknowledged its aggravating features and reminded the judge that the standard sentence (10 years’ imprisonment) was ‘a guidepost not a starting point’. It did not invite a ‘two stage approach’ and was simply a factor to be taken into account with all other factors in the instinctive synthesis. Counsel then set out his client’s background — this included:

   •The appellant was aged 30 at the time of offending. He is a Pakistani citizen with no prior criminal history. He has a very solid educational and employment history. Good character testimonials were tendered on the plea.

   •He came to Australia in October 2015 seeking education and opportunity. He briefly returned home to marry at an arranged ceremony in 2017. His wife stayed in Pakistan, and remains supportive, looking forward to his return so that they can start a family together.

   •A psychological report authored by Ms Carla Ferrari was tendered. (We shall return to this report.)

   •The appellant’s father died in 2012 leaving behind his mother and his six siblings. He is the eldest son and bears responsibility to care for and support his family.

   •Imprisonment, given the appellant’s mental state and his isolation, would be more burdensome on him than prisoners who are neither suffering from similar mental illness nor isolated.

   •The plea, while not made at the earliest stage, still had substantial utilitarian benefit.

   •The appellant, given his prior history and the psychological assessment that he was a ‘low risk’ of reoffending, had promising prospects for rehabilitation.

   •The appellant was the victim, during his childhood, of sexual abuse carried out by his paternal uncle over a protracted period.

2. The psychological report was the product of a clinical assessment conducted by Ms Carla Ferrari. In substance, noting the appellant’s personal history, considerable academic achievements, his occupational history, and his married status, Ms Ferrari then set out his mental health and medical history, both of which pre-offence were reported to be unremarkable.

3. Since the offence the appellant has been prescribed Mirtazapine, an antidepressant used primarily for treatment of a major depressive disorder which the appellant takes sporadically as required. Ms Ferrari noted that the appellant has experienced nightmares since the offence associated with public vilification and his own experience of sexual abuse at the hands of his uncle. She also noted that the appellant has been the subject of abuse and an assault whilst in immigration detention.

4. She reviewed his current offending and conducted a mental state evaluation including psychometric testing and a checklist for post-traumatic stress disorder (‘PTSD’). Her diagnostic impressions were that the appellant, as at February 2021 was suffering from symptoms of a major depressive disorder preceding, during and subsequent to the offending ‘due to low mood, irritability, themes of worthlessness, helplessness, hopelessness and a number of neurovegetative disturbances which impacted his overall functioning significantly’. Ms Ferrari also found that the appellant exhibited evidence of PTSD including intrusion symptoms, negative alterations to his cognitions and mood and marked alterations in arousal and reactivity. Ms Ferrari thought these conditions had persisted since childhood and were responsive to a harsh upbringing, particularly by his father, and sexual abuse by his paternal uncle during his adolescence. Ms Ferrari considered that the offending behaviour

   can be partially attributed to his severe depression and anxiety symptoms at the time of the offending in the context of adjustment issues and significant stress which caused mood disturbance and impacted his decision-making and judgment, resulting in uncharacteristic behaviour.

5. This connection with the offending was rejected by the trial judge, and no error is alleged in this regard in this appeal.

6. In the plea hearing, the appellant contended that the 698 days of immigration detention amounted to, in a practical sense, pre-sentence detention and must be reflected in the sentence ‘in a broad and practical way’.[1] The appellant also relied on his psychological condition (referred to above) to engage all limbs of the Verdins principles.[2] The inevitable imprisonment would weigh more heavily on the appellant than others, it was contended, for the following reasons:

•It would be his first custodial sentence.

•The ongoing stress and anxiety arising from his isolation from his family, and his concerns as to their health and welfare during the COVID-19 pandemic.

•His continuing concerns as to when he could be deported — at the expiration of his parole or at the expiration of his sentence.

[1]Underwood (a pseudonym) v The Queen (No 2) [2018] VSCA 87, [37] (‘Underwood’).

[2]R v Verdins (2007) 16 VR 269; [2007] VSCA 62.

1. Counsel for the appellant contended that his prospects for rehabilitation ought be considered ‘good’.

2. At the plea hearing the prosecution emphasised that rape is a very serious offence, reflected in both the maximum penalty (25 years) and the standard sentence (10 years). This was a ‘mid-range’ example of the offence in terms of its objective gravity. The prosecution however accepted that it was open to the Court to take a favourable view of the appellant’s prospects of rehabilitation.

The judge’s sentencing reasons

1. The judge rehearsed the offending. He noted that the appellant’s student visa was cancelled and that he was detained in immigration detention from 14 March 2019 until 9 February 2021. His Honour set out the procedural history including the fact that the appellant conducted a contested committal hearing, with the matter resolving on 7 December 2020 when the appellant indicated his intention to plead guilty. The judge stated that this offending had continued to have a ‘profound effect on (the) young victim.’[3] The judge noted the standard sentence provisions and their place in the sentencing scheme.[4] The judge set out counsel’s sentencing submissions including the appellant’s background which we shall not repeat.[5]

   [3]DPP v Babar [2021] VCC 180, [22], [43] (‘Reasons’).

   [4]Ibid [23]–[25]; Brown v The Queen (2019) 59 VR 462; [2019] VSCA 286.

   [5]Reasons, [28]–[34].

2. Insofar as the time spent in immigration detention was concerned his Honour stated:

   Apart from the short period of time that you have spent on remand, you have spent 698 days in Immigration Detention. You must receive full benefit for this detention although it does not constitute pre-sentence detention pursuant to s18 of the Sentencing Act 1991.[6]

   Later the judge stated that the period spent in detention would result in a lower sentence than otherwise would be the case.[7]

   [6]Ibid [29].

   [7]Ibid [44].

3. The judge then considered Ms Ferrari’s psychological opinion. In short compass he was prepared to accept that the appellant suffered from a major depressive disorder and PTSD and that these would weigh more heavily upon him throughout his incarceration, than on a person in good mental health. The judge, however, as we have explained, did not accept Ms Ferrari’s opinion as to his mental state at the time of offending, nor, it would follow, any relevant connection between the offending and a particular mental state.

4. The judge accepted that the appellant would experience ongoing stress and anxiety due to his isolation from his family that would continue throughout his sentence and accepted the submission that he had good prospects for rehabilitation. He considered the offending conduct to be opportunistic and predatory, and was unimpressed with the appellant’s false denials and assertions in his police interviews, which persisted even after he was confronted with the DNA evidence. In conclusion the judge considered the appellant to be a suitable vehicle for general deterrence, denunciation and just punishment. The judge, having noted correctly the use he may make of the standard sentence legislation, proceeded to pass sentence in line with the table in [1] of these reasons.

This appeal

1. In succinct and attractive submissions counsel for the appellant contended that the combination of the appellant’s:

   •Good prospects for rehabilitation;

   •Lack of prior criminal history in Australia or Pakistan;

   •(Late) plea of guilty taken with its ‘significant utilitarian benefit’;

   •Demonstrable and accepted, if belated, remorse; and

   •Time spent in immigration detention prior to sentence,

   all conspired to demonstrate that the sentence was manifestly excessive.

2. The appellant contended that either:

   a.Despite the judge’s statement that he gave ‘full benefit’ for the immigration detention of 698 days, he must have given it insufficient weight; or

   b.Insufficient weight was given to the time spent in immigration detention and the other features of mitigation.

3. In equally attractive submissions, the respondent contended that even if the ‘full benefit’ meant a complete ‘day for day’ allowance for the time spent in immigration detention, the sentence imposed was well within range given:

   •The vulnerability of the complainant, drunk at night and alone in the back of the Uber.

   •The breach of trust reposed in the Uber driver to provide a service.

   •The offending, whilst not highly pre-planned was also not completely spontaneous.

   •The appellant persisted with his sexual attack upon the victim despite her verbal and physical protests.

   •Whilst the actual offending was not particularly prolonged, the Uber vehicle was stationary for about 15 minutes.

   •The standard sentence of 10 years.

   •The maximum penalty of 25 years.

   •The need for general deterrence.

   •The high moral culpability of the appellant.

   •The qualified and belated expressions of remorse, with the appellant denying the offending for approximately two years.

   •The profound effects of the offending on the complainant.

   •Whilst the appellant’s guilty plea had a utilitarian value, this was diminished by his running a contested committal at which the complainant was cross-examined. It was accepted however that the complainant was spared the further ordeal of giving evidence at trial and the community were saved the cost (and inconvenience) of a trial. It was also accepted that the utilitarian value of the plea should be given greater weight given that it was entered during the COVID-19 pandemic.

Consideration

1. There was discussion both at the plea hearing and before this Court as to the practical consequences of the 698 days spent by the appellant in immigration detention. As we have observed the judge stated the appellant would receive ‘full benefit for this detention’.[8] In Underwood, this Court remarked:[9]

   Fairness dictated that the sentence imposed upon him ought reflect the fact that the appellant had been kept in suspense, with charges hanging over his head for two years, in circumstances where he was deprived of his liberty during that period. In a broad and practical way, the fact of his detention needed to be reflected in the sentence imposed upon the appellant.[10]

   [8]Ibid [29].

   [9][2018] VSCA 87, [37] (citation as in original).

   [10]See Akoka v The Queen [2017] VSCA 214, [109]–[112] (Warren CJ, Redlich and Kyrou JJA). Cf R v Lovegrove [2018] NTSC 2, [46] (Southwood J).

2. In Sahhitanandan v The Queen, this Court emphasised that the type of detention, whilst not strictly constituting pre-sentence detention pursuant to s 18 of the Sentencing Act 1991 nevertheless must be taken into account on sentence in a ‘broad and practical way’.[11] The Court also stated that sentencing judges should clearly explain ‘what weight has been given to a period of immigration detention… in order to explain what might otherwise appear to be an unduly low sentence’.[12]

   [11][2019] VSCA 115, [32].

   [12]Ibid [34].

3. Clearly in this case a total effective sentence of five years’ imprisonment with a minimum non-parole period of three years is a lenient sentence, when considered against the overall circumstances that we have enumerated, particularly the serious nature of the offending, the subsequent ‘victim blaming’, the contested committal, the late plea and the standard and maximum sentences for this offence. The current sentencing approach to pre-sentence immigration detention that has arisen as a consequence of relevant offending is to treat it as a factor in the ‘intuitive synthesis’ and to give it the weight that it deserves in that synthesis in a ‘broad and practical way’. Ordinarily, the longer the time spent in detention, the more weight it would be given in the synthesis. In this case it is plain that this was a matter that weighed heavily in the appellant’s favour; so much follows from the ‘full benefit’ statement by his Honour and the sentence ultimately imposed.

4. We are unable to conclude that the sentence imposed is ‘“wholly outside the range of sentencing options” available to the sentencing judge’,[13] or put another way that it was ‘not reasonably open to his Honour to come to the sentencing conclusion that he did.’ In our view the sentence imposed was comfortably within the range of sentencing options available and reflects that proper weight must have been given to all the relevant circumstances of the appellant and of his offending.

   [13]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

5. The central theme of the appellant’s argument was that it was likely that his Honour, notwithstanding his words, must have undervalued the period spent in immigration detention. This can be tested in this way. Even if ‘full benefit’ meant a full 698 day reduction of the sentence otherwise imposed, it followed that before that deduction the head sentence imposed would have been 6 years and 11 months. In the circumstances to which we have referred, a sentence of 6 years and 11 months (i.e. before allowing for the full benefit of the period of immigration detention) is unremarkable. It follows that a sentence of 5 years after giving allowance to the period of detention is certainly within range for what is, in our view, serious predatory offending calling for significant weight to be given to general deterrence and denunciation.

6. The judge was supplied with three sentencing examples said to be comparable to the written case.[14] They are of no real assistance as the relevant circumstances of each vary considerably. One predated the standard sentence regime and is irrelevant. The other two were of similar offending committed on vulnerable intoxicated victims by taxi/Uber drivers. They are numerically insufficient to establish a range and, at any event, do not support the appellant’s argument that this sentence was manifestly excessive.

   [14]DPP v Mirza [2021] VCC 1181; DPP v Abdi [2020] VCC 1668; Shrestha v The Queen [2017] VSCA 364.

7. The appeal must be refused.

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