Buksh v The Queen

[2013] NSWCCA 60

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Buksh v R [2013] NSWCCA 60

Hearing dates:

26 July 2012

Decision date:

11 April 2013

Before:

Beazley P at [1]
Hall J at [2]
Campbell J at [3]

Decision:

1. Grant leave to appeal;

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - applicant charged with three counts of aggravated sexual intercourse without consent - plea of guilty - whether sentencing judge erred by applying a two-stage sentencing process discussed in R v Way [2004] NSWCCA 131; 60 NSWLR 168

Legislation Cited:

-Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

-Application by the Attorney General [2004] NSWCCA 303; 61 NSWLR 305
-Butler v R [2012] NSWCCA 23
-Markarian v The Queen [2005] HCA 25; 228 CLR 357
-Muldrock v The Queen [2011] HCA 39; 244 CLR 120
-R v AEM Snr; R v KEM; R v MM [2002] NSWCCA 58
-R v Gorman [2002] NSWCCA 516; 137 A Crim R 326
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
-R.v Lancaster (1991) 58 A Crim R 290
-R v Nichols (1991) 57 A Crim R 391
-R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category:

Principal judgment

Parties:

Nazir Buksh (Applicant)
Regina (Respondent)

Representation:

Counsel:
H K Dhanji SC (Applicant)
J H Pickering (Respondent)
Solicitors:
Harish Prasad & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2010/350253

 Decision under appeal 

Date of Decision:

2011-08-30 00:00:00

Before:

Judge Keleman SC

File Number(s):

2010/350253

Judgment

1. BEAZLEY P: I agree with Campbell J.

1. HALL J: I agree with Campbell J.

1. CAMPBELL J: The applicant seeks leave to appeal against the sentence passed on him in the District Court of New South Wales on 30th August 2011 by his Honour Judge Keleman SC for three counts of aggravated sexual intercourse without consent. When dealing with the third count, his Honour, at the applicant's request, took into account two other offences of aggravated sexual intercourse without consent. The offences all occurred on 17th October 2010 and involved the same victim, a young woman then nineteen years of age, previously unknown to the applicant.

1. The total effective sentence imposed was one of twelve years imprisonment with an effective non-parole period of eight years structured as follows:

(a)   For the first count, a non-parole period of six years imprisonment commencing on 21st October 2010 and expiring on 20th October 2016 with an additional term of three years commencing on 21st October 2016 and expiring on 20th October 2019;

(b)   For the second count, a non-parole period of six years commencing on 21st October 2011 with an additional term of three years commencing on 21st October 2017 and expiring on 20th October 2020;

(c)   For the third count (taking into account the Form 1 offences) a non-parole period of six years commencing on 21st October 2012 and expiring on 20th October 2018 with an additional term of four years commencing on 21st October 2018 and expiring on 20th October 2022.

The earliest date on which the applicant is eligible to be released on parole is 20th October 2018.

1. The sole ground of appeal proposed is an error of principle in that, so it is said, his Honour erred in sentencing the applicant for these standard non-parole period offences in accordance with the two-stage process discussed in R. v. Way [2004] NSWCCA 131; 60 NSWLR 168, overruled by Muldrock v. The Queen [2011] HCA 39; 244 CLR 120. Given the focused nature of the appellant's argument, it is sufficient if I state the facts, matters and circumstances relevant to sentencing in summary form by reference to the findings made by the primary judge.

Circumstances of the offending

1. On any view of the facts, the crimes of which the applicant was convicted upon his plea of guilty were objectively serious. The victim, as I have said, a young woman of nineteen years of age, who resided in Sydney's greater western region, accompanied a group of girlfriends to the city of Sydney for what might be described as a "girls day out". The party, including the victim, "consumed a number of alcoholic beverages". The group returned to Parramatta railway station between 3 and 4 p.m. before travelling to a house in Northmead where they continued to drink. The victim and one girlfriend then went to the Hotel Parramatta at about 7 p.m. to meet the girlfriend's boyfriend. More alcohol was there consumed and the victim by then was feeling "pretty drunk". She expressed the desire to go home but her girlfriend prevailed upon her to stay, promising to see her home in a taxi later.

1. At about 9 p.m. the victim and her now two companions walked to Parramatta station with the intention of taking a train to Blacktown. By chance, the applicant was standing outside the railway station. The victim approached him and asked for a cigarette, which he supplied. He followed the group onto the platform and onto the Blacktown train. On the train he engaged them in conversation. They alighted at Blacktown and the offender went with them. They were refused entry to the Blacktown Workers' Club because of the doorman's assessment of the victim's level of intoxication, but were admitted to a nearby nightclub. There, it is fair to say, the applicant plied the victim and her girlfriend with further strong alcoholic drinks. An hour later the group left the nightclub to take a taxi from a nearby rank to return the victim to her boyfriend's house. She was very drunk and had trouble standing. The applicant helped her to walk to the taxi rank.

1. At the rank a number of taxis refused to pick the victim up because of her state of intoxication. Eventually a taxi driver obliged. The victim's friends helped her into the taxi. The applicant took the opportunity of getting into the back seat with her, informing her friends that he would see her home safely and pay for the taxi. This the applicant did not do. Instead he directed the taxi driver to his own place in Parramatta.

1. The victim was in something of a stupor, but once, when the taxi stopped at traffic lights, she tried to escape. However, she stumbled and fell onto the roadway beside the taxi. The applicant picked her up and put her back in the cab. At his place he paid the fare and got the victim out of the cab.

1. The offender then led the victim into his apartment block.

1. It was agreed for the purpose of sentence that "CCTV footage obtained from the apartment block depicts [the applicant] leading the victim into the building and towards the lifts. The victim is virtually paralytic and can't walk, the offender is seen to be forcibly leading her towards the lifts".

1. A witness, who had been visiting family in the building, on her way out, saw the victim on the lobby floor with the applicant standing over her. She adjudged the victim to be drunk and only semi-conscious. She inquired after the victim's wellbeing, but the applicant reassured her. The witness said that the victim had said "can you help me?" several times.

1. The CCTV footage "clearly depicts the victim attempting to prevent herself from being dragged into the lift, [the applicant] forcibly pulling her by the arms into the lift".

1. It was agreed that because of the victim's advanced state of intoxication she did not have complete recall of all that occurred. She had no recollection from getting out of the taxi to entry into the applicant's apartment. Her first memory is of lying on a tiled floor with blood smeared on the tiles, trying to get away from the offender. The offender hit her splitting open her lip.

1. By his plea of guilty, the applicant admitted to the following offences:

(1)   On the first count, sexual intercourse without consent consisting of digital penetration of the victim's vagina. The applicant admitted to penetration with two fingers causing injury to the victim. This intentional infliction of actual bodily harm was the circumstance of aggravation. It was also the source of the blood the victim noticed on the tiled floor.

(2)   The second count consisted of the applicant anally penetrating the victim without her consent with his penis. Despite her protest, the applicant did not desist. The circumstance of aggravation was the deprivation of the victim's liberty by the offender.

(3)   The third count consisted of the vaginal penetration with his penis without the victim's consent. The circumstance of aggravation was deprivation of the victim's liberty by the applicant.

1. The two Form 1 offences were, first, the applicant forcibly performing an act of cuninglingus on the victim, and secondly forcing her, by pulling her hair and her head towards him, to perform an act on fellatio on him. Again, the aggravating circumstance for each was the deprivation of the victim's liberty by the applicant.

1. The applicant put the victim out of the apartment block at about 6 a.m. She was then clad only in one of his t-shirts and her tights. This too was depicted on the CCTV. She ran away arriving at her home in Westmead at about 6:30 a.m. She left behind not only her clothing, but also her handbag and mobile telephone. When she arrived home her father who opened the door for her, saw that she was injured, upset and disorientated. She blurted out a narrative of what had befallen her. Her parents called the police who attended the home and took the victim to Westmead Hospital for treatment and a sexual assault examination.

Other aggravating factors relevant to sentencing

1. Quite apart from the element of aggravation forming part of each offence, there were a number other aggravating factors relevant to sentencing. The victim was vulnerable by reason of her degree of intoxication which must have been obvious to the applicant notwithstanding his own level of intoxication. The victim's youth also made her vulnerable. The criminal activity was planned, even if only spontaneously following their chance meeting at Parramatta station. The applicant followed the victim onto the train; engaged her in conversation; followed her to another bar; plied her with alcohol; took his opportunity to deprive her of her liberty by directing the taxi driver to drive to his home, not hers; captured the victim when she tried to escape; and forced her into the lift to access his home when she tried to resist.

1. The sexual assault caused injury to the victim's vagina involving bleeding from the left lateral wall which lasted a number of days and necessitated the victim's hospitalisation. She also suffered soft tissue injuries to her head and neck area, chest and back area, and upper and lower limbs. She suffered psychological injury necessitating the prescription of antidepressants and counselling. Moreover, she feels ashamed, violated and embarrassed.

1. As I have recounted, at least to some extent a prelude to the offence involved the applicant causing the victim to take and be affected by alcohol.

The applicant's subjective case

1. When first questioned by police the applicant asserted that the sexual intercourse between him and the victim was consensual and, indeed, initiated by the victim; but he pleaded guilty at the first available opportunity before the Local Court.

1. The applicant was nearly 36 years of age at the time he was sentenced and had been in custody in respect of this matter since 21st October 2010. He does not have a record of any previous convictions, other than in respect of driving matters, some of which are significant, including two mid-range drink driving offences, and two driving whilst disqualified offences. The primary judge considered, therefore, that he was not disentitled to leniency.

1. Generally speaking, he seems to have been a person of good character. After leaving school he completed a TAFE Associate Diploma in Accounting, and a Bachelor of Nursing Degree at the University of Western Sydney, being admitted to the nursing profession as a registered nurse. He performed well in his profession. At the time of his arrest in October 2010, he had held responsible positions at various nursing homes including as Director of Nursing, and Clinical Manager. His Honour considered the applicant's offending will result in him being deregistered thereby preventing him from continuing his chosen career. The primary judge, as he was entitled to do, took this into account as an extra-curial punishment: R. v. Lancaster (1991) 58 A Crim R 290; Application by the Attorney General [2004] NSWCCA 303; 61 NSWLR 305 at 333 [114] - [115].

1. His Honour had before him a pre-sentence report, including an actuarial recidivism risk assessment, and a psychiatric report of Dr. Bruce Westmore. On the basis of this evidence, his Honour found that the applicant was not likely to re-offend and has good prospects of rehabilitation, provided he curbed his drinking. He does not have an anti-social personality disorder. He has good insight into the effect of his offending on the victim and upon his own extended family. The recidivism assessment placed the applicant in the moderate to low risk category compared to other male sex offenders. Correctional officers considered him to be quiet and compliant. The evidence suggested that he was suitable for, and would benefit from, a medium to high level of supervision from the probation and parole service on his eventual release on parole.

1. It is convenient to interpolate here that this Court received an affidavit from the applicant against the contingency that it was necessary to re-sentence him. It is apparent from it that since he was sentenced he has attended to his rehabilitation and re-education. Because of the nature of his offence, he has been "put into protection" and transferred to Junee. This makes it more difficult for his family and girlfriend to visit him. From these circumstances, one might infer that incarceration is harder on the applicant than on the some others.

1. The reference to the need for the applicant to curb his drinking follows from the consideration that he had reported to the psychiatrist that drinking, particularly, binge drinking on the weekend, was a feature of his lifestyle since the breakdown of his marriage at age 33. Alcohol abuse was part of the psychiatrist's diagnosis together with adjustment disorder with depressed and at times anxious mood. The primary judge found this latter condition was reactive to the applicant's present circumstances. His Honour considered that the alcohol consumption whilst not a mitigating factor "does explain why the present offences came to be committed".

1. His Honour seemed to accept as sincere the expressions of remorse contained in Exhibit 2, a letter written by the applicant on 30th August 2011.

Reasons for sentence

1. His Honour found "the present offences are objectively serious". He acknowledged the importance of "general deterrence and punishment", and to some extent "personal deterrence", for offences of this type. He thought that last consideration of lesser significance, doubtless, because of the findings he had made in relation to the low risk of re-offending and good prospects of rehabilitation. The primary judge found, no doubt having considered the other options, that in the light of the seriousness of the offending "there is no option but to impose substantial full time custodial sentences". His Honour indicated that he would allow a 25 per cent discount on the sentences that would otherwise have been imposed for the utilitarian value of the guilty pleas.

1. His Honour also found a need to partially accumulate the sentences he had in mind for each offence to reflect the totality of the criminality of the offending. And he found special circumstances based upon a range of considerations including: that this was the applicant's first custodial sentence; the benefit the applicant will receive from the extended period of supervision; and the need for partial accumulation of the sentences.

1. In dealing with the requirements of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour said:

In relation to the present offences, the legislation provides for a standard non-parole period of 10 years imprisonment. This applies for an offence falling within the mid-range of objective seriousness for such an offence following conviction at trial. Following a plea of not guilty the standard non-parole period is nevertheless a reference point for sentencing purposes... I am satisfied from the agreed facts that while each of the three offences involve different forms of penetration and the acts of vaginal and anal penetration involved unprotected sex, they each fall within the middle range of objective seriousness for such offences.

After passing sentence as I have indicated at [4] above, his Honour said:

For each offence the standard non-parole period has not been imposed having regard to the offender's earlier plea of guilty, the subjective circumstances and a finding of special circumstances.

The submissions of the parties

1. Mr. H.K. Dhanji SC, who appeared for the applicant, pointed out that at the time the applicant was sentenced, the correct approach for the primary judge to follow for Pt 4 Div 1A offences was taken to have been determined by the dictates of Way at [117] - [118]. It was submitted that his Honour's adherence to that two-stage approach was obvious by reference to the two passages I have set-out in the immediately preceding paragraph. It was submitted that it is clear that his Honour classified each offence as falling "within the middle of the middle range of objective seriousness for such offences". This was stage one. The applicant submitted that His Honour then undertook stage two by expressing specific reasons for departing from the standard non-parole period.

1. Mr. Dhanji reminded the Court that the High Court of Australia in Muldrock had disapproved of this approach at 132 [28], and to that extent Way had been overruled. Not only was the "two-stage approach to the sentencing of the offenders" disapproved of but there is no "need to classify the objective seriousness of the offending" (Muldrock at 132 [29]). This means there is no need to classify the subject offending by express reference to "the middle range of objective seriousness by comparison with a hypothesised offence answering that description and, in the event that it does, by enquiring if there are matters justifying a longer or shorter period": Muldrock 132 [28]. Naturally, giving content to s.54B(2) and (3) requires an assessment of the objective seriousness of an offence which is to be undertaken "without reference to matters personal to a particular offender or class of offenders": Muldrock 132 [27].

1. Mr. Dhanji argued that the required instinctive synthesis had been overborne in the present case by the consideration of the standard non-parole period and adherence to the two-stage approach then required by R. v. Way. Learned senior counsel argued that the outcome "was affected by [a] type of distortion". As required by Muldrock (131 [26]), the primary judge should have approached the sentencing task by reference to the approach described by McHugh J in Markarian v. The Queen [2005] HCA 25; 228 CLR 357 at 379 [51].

1. Mr. Dhanji argued that the applicant's strong subjective case had been overborne by his Honour's understandable error of principle. The assessment of the strong subjective case as part of the process of fully identifying the facts, matters and circumstances which bear upon a judgment about the appropriate sentence to be imposed, compelled the conclusion that a lesser sentence is warranted in law and should have been passed.

1. Learned counsel for the Crown referred to the judgment of Davies J in Butler v. R. [2012] NSWCCA 23 at [26] (Whealy JA and Rothman J agreeing). On his Honour's analysis, in the ordinary case, error might be shown when a sentencing judge has adopted the approach of commencing with a standard non-parole period and then seeking to find factors which could "justify a variation from it". Generally there will be no error if the sentencing judge refers to the standard non-parole period "simply as a guideline or yardstick". The consideration that the primary judge referred to the standard non-parole period as a "reference point for sentencing purposes" demonstrated that his Honour's approach to the present case was permissible. Demonstrating that his Honour had otherwise followed "the dictates of Way" is not sufficient to demonstrate appellable error.

1. The Crown argued that on the fair reading of the reasons for sentence as a whole, his Honour had in fact demonstrated adherence to the proper Markarian approach which was not undermined by either classifying the objective seriousness of the offending "within the middle of the middle range", or the mere expression of reasons for departing from the standard non-parole period, which was, after all, a statutory requirement: s.54B(4).

1. The Crown argued that in any event having regard to the objective seriousness of the offending, the need to fix an appropriate sentence for each offence, the question of accumulation and the total criminality involved, the Court should be satisfied that no other sentence in law was warranted, the strength of the subjective case notwithstanding.

Decision

1. With respect, I accept that Mr Dhanji's submissions accurately explain the effect of Muldrock. There is force in his submission that the use of the expression "the middle of the middle range of objective seriousness for such offences" suggests that his Honour classified the objective seriousness of the offending by "commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with a hypothesised offence answering that description". Moreover, the expression of reasons for departing from the standard non-parole period, following the pronouncement of the various sentences in the present case, may imply an inquiry as to whether "there are matters justifying a longer or shorter period": Muldrock at [28] - [29].

1. But this impression is reduced by the consideration that as his Honour fixed nine years as a total term for each of counts 1 and 2, which were free of the Form 1 offences, his starting point must have been twelve years before discounting for the early plea. By the application of s.44(2) of the Crimes Sentencing Procedure) Act, before the finding of special circumstances, this suggests a non-parole period of nine years, not ten, which is the standard non-parole period. There may not be much in it, but for this reason a supposed starting point of a non-parole period of nine years does not bespeak an automatic application of s.54B(2) to the finding of objective seriousness in respect of these offences.

1. I accept the Crown's submission that the present case is like Butler. When one considers his reasons as a whole, his Honour did not adopt the approach of commencing with the standard non-parole period before looking for factors which could "justify a variation from it". Naturally, his Honour's reasons for sentence also must be read fairly. Adopting this approach, I am not persuaded that error has been demonstrated.

1. Reading his Honour's reasons fairly and as a whole, in my view it is clear that he was, in fact, "mindful of two legislative guideposts: the maximum sentence and the standard non-parole period" as required by Muldrock at 132 [27]. (See the introductory paragraph to the reasons for sentence.) His Honour's reference to these considerations should not be read as indicative of adoption of an impermissible two-stage approach to the sentencing task.

1. A consideration of all the primary judge said up to the first of two paragraphs I have quoted in full at [30] above, which appears on page 17 of the reasons, demonstrates that in substance, his Honour did "identify fully the facts, matters and circumstances which the judge [concluded bore] upon the judgment ... reached about the appropriate sentence to be imposed", notwithstanding that this sentence preceded the decision in Muldrock. After all, the instinctive synthesis approach was the usual approach to sentencing for all offences before the advent of the standard non-parole period provisions. In my judgment the two impugned passages from his Honour's reasons, which demonstrate adherence to Way, viewed through the prism of Butler, as a matter of substance, do not betray appellable error.

1. I would reject the ground of appeal.

1. Against the prospect that I am in error in this conclusion, I wish to state that I am not of the opinion that some other - here lesser - sentence is warranted in law, notwithstanding what Mr. Dhanji rightly represents as the strength of the applicant's subjective case. The considerations of the objective seriousness of the offence, the need for retribution, including the consideration of the effect of the offending on the victim, denunciation and general deterrence all called for a heavy sentence.

1. As I pointed out at [26] above, his Honour laid emphasis upon the considerations of the need for general deterrence and punishment. As a unanimous court pointed out in R. v. AEM [2002] NSWCCA 58 at [94]:

It must be stressed that all members of our society, including our young people, must be free to lawfully use the streets without fear of being subjected to either physical or sexual assault. The long term effects of the trauma invariably encountered by victims of either form of attack are well documented.

It also bears repeating as Hunt CJ at CL said in R v Hartitiainen (unreported, New South Wales Court of Criminal Appeal, 8 June 1993) at 3, that non-consensual sexual intercourse is an extreme form of violence. It is a crime which must and will be denounced by the courts by the imposition of appropriate sentences. As Lee AJ (with whom Carruthers and Sully JJ agreed) said in R v Nichols (1991) 57 A Crim R 391 at 395:

"... it needs to be remembered that ... there must always be a reasonable proportion between the objective seriousness of the crime and the sentence imposed. In a serious crime, the court must show its denunciation of the crime committed. The moral outrage of the community must be taken into account."

1. Lee AJ, speaking of sentencing young offenders, went on to say:

True it is... that the courts consistently point out the need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided ... However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature, is so great, that that principle must, in the public interest, give way.

The applicant is not a young person, he had well and truly reached the age of maturity and full responsibility at the time of offending, but it might be thought that his previous good character, taken on it's own, might also be, in the ordinary course, a factor calling for particular leniency; likewise the consideration that he has suffered significant extra-curial punishment by the probable loss of his profession. But by parity of reasoning with the dictum of Lee AJ in Nichols, the seriousness of the crime committed by the applicant, even though a man of previous good character, "is of such nature, is so great" that condign punishment, "in the public interest", is called for.

1. Additionally, as Beazley JA (as her Honour then was) pointed out in R v Gorman [2002] NSWCCA 516; 137 A Crim R. 326 at [9]:

In the present case, the three offences had to be considered separately. There was no common element in any of the offences, in the sense that notion is explained in Pearce [v the Queen (1998) 194 CLR 610 at 623]. To characterise the offences, therefore... as "one episode of criminality" [misapplies] Pearce and [fails] to have regard to the specific circumstances of each individual offence.

(See also Sperling J at [54]; and R. v. Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [67] per Simpson J).

1. As the Court pointed out in AEM at [70], the principle of totality "requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved".

1. Considering the sentence passed below in the light of these principles, I am not persuaded that his Honour's discretion miscarried notwithstanding the strength of the subjective case, to which, in my opinion, the primary judge gave appropriate weight.

1. The orders I propose are as follows:

1. Grant leave to appeal;

2. Appeal dismissed.

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Decision last updated: 11 April 2013