Director of Public Prosecutions v Mir
[2012] VCC 463
•19 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-00640
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHOOB ALI MIR |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 17 April 2012 | |
DATE OF SENTENCE: | 19 April 2012 | |
CASE MAY BE CITED AS: | DPP v. Mir | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 463 | |
REASONS FOR SENTENCE
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Catchwords: Jury verdict of guilty of indecent assault; acquitted of rape; victim was passenger in taxi driven by accused, was vulnerable as affected by alcohol and asleep; facts unclear as to basis for jury verdict; assault at higher end of range not able to be proved beyond reasonable doubt; accused denies assault; general deterrence of particular importance; no prior convictions and good prospects for rehabilitation; partly suspended sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Churchill | |
| For the Accused | Mr I. Polak |
HER HONOUR:
1 Mahboob Ali Mir, you have been found guilty by a jury of one charge of indecent assault. It must be said at this stage that you deny the charge.
2 The incident occurred in the early hours of 14 September 2010 after you had picked up the complainant from outside a hotel in North Melbourne. The complainant was aged 22 and had been living in Melbourne for a month having previously lived in country Victoria. She was staying with a friend in Fairfield.
3 On the evening of 13 September she had been at a hotel with friends and by the time she left at midnight she was clearly drunk. She could not remember getting into the taxi or giving you her address but you drove her to where she was staying. She had been asleep through the journey and remained asleep. You stopped outside her house and waited for eight minutes and then drove to a nearby street where you turned off the meter and then drove to another street where you waited for seven minutes and then drove back to her house.
4 The complainant was still asleep and you parked outside her house for an hour and a half. The log operated by the taxi company shows you left there at 2.38 am and the complainant gave evidence that she awoke when she felt a finger in her vagina. You were charged with rape and acquitted of that offence.
5 Her evidence was that she was sitting in the normal position on the front passenger seat when she awoke and she could not remember whether the seat had been upright or in a reclined position. The complainant could not say whether the belt of her jeans or the button of her jeans had been undone. DNA testing was performed of these items and your DNA could not be excluded as having contributed to the DNA found there.
6 She pulled your hand away, although she could not say whether she grabbed your hand, wrist or arm in doing so. She confronted you about what you were doing and you demanded that she pay the fare of $44. She queried why the fare was so high and you told her that you had been driving around for ages as she had not been able to remember her address. You threatened to call the police if she did not pay and she paid using her debit card and then got out of the taxi. She immediately told her housemate what had happened and reported it to the police the following morning.
7 You were aged 33 and have been living in Australia since 2008 on a student visa. You are the eldest of 12 children. All your 11 siblings live in India, ten of them still with your parents. Your father obtained a loan by way of mortgage to pay your education expenses of $22,000 in Australia and you have been endeavouring to repay that money and provide money for the family who live in a two bedroom house in circumstances of considerable poverty. Your parents placed a high value on education and all your adult siblings have tertiary qualifications but none of them are employed in professional jobs. You yourself completed a Bachelor of Commerce degree in India.
8 In Melbourne you were employed as a taxi driver working the nightshift. You were studying for a diploma in community work at an educational institution and you completed that qualification. During your studies you completed two unpaid placements each for several months, one in an aged care facility and the other in an organisation for children with disabilities. Unfortunately that qualification has not lead to employment.
9 When you were charged you lost your taxi driving job and found casual work in a factory. You then lost that job through having to attend court for your trial but you have now commenced there again earning between $400 and $500 per week. You are living in a shared house, paying rent and the usual outgoings and sending money to your family in India.
10 You are a devout Muslim and are very ashamed at having been found guilty of the charge. You have not told your family in India nor have you told anyone here in Melbourne.
11 Immediately after the offence occurred your student visa was nearing expiration and you applied for a temporary visa and that would seem to be your present visa status. You do not qualify for any government benefits and cannot afford to have any medical treatment which you need for old injuries to your back and knee. You have been extremely upset at the verdict and indeed an ambulance was called to attend to you at the time.
12 The complainant has provided a victim impact statement in which she states that she continues to suffer from great anxiety caused by the assault. She has not told her family and feels guilty about this. The assault was a considerable factor in her decision to move away from Melbourne.
13 This type of offence, a sexual assault on a vulnerable young woman in a taxi, is a very serious matter because of the threat to safety and the breach of trust it involves. A passenger should be confident of feeling safe in a taxi which is part of the city's transport system. It is not surprising that the complainant feels as she does.
14 The sentence I impose must take account of the need to deter other people in whom the trust of the public is placed from offending in this way.
15 Your personal circumstances are important too. Your prospects for rehabilitation would seem to be good as you have no prior convictions, you do not drink alcohol nor use illicit drugs and there is nothing to suggest you are predisposed to criminal or antisocial behaviour.
16 You work to support not only yourself but your family in India as well. Mr Polak, who appeared for you on the plea and at the trial, submitted that a community corrections order would be appropriate. Ms Churchill, for the prosecution, submitted that the appropriate sentence was a prison term for four years with a non-parole period of three years. She supported this by reference to the fact that a trial had been held and that therefore the complainant has been cross-examined twice, that she was a vulnerable victim who has suffered the consequences of the assault as she has described in her victim impact statement and that you breached the trust placed in you as a taxi driver and that you lack remorse. Despite those matters, it seems to me that the proposed sentence is well outside the range. It is more appropriate for the offence of rape, depending on the circumstances.
17 The offence of which you were found guilty is an indictable offence, which can be heard in the Magistrates' Court as well as before a judge and jury. It carries a maximum prison sentence of ten years and/or a fine of 1200 penalty units.
18 It cannot be understood from the verdict exactly what facts the jury found on which they based their verdict. Having acquitted you of rape, their finding as to the charge of indecent assault could be based on any touching consistent with the evidence. By that I include the evidence as to your DNA not being excluded from that found on the buttonhole area of her jeans and on the button and the belt. The jury could have reasoned that any touching in that region of her body or clothing was an indecent assault.
19 The most serious form of indecent assault that the jury could have found, would be the placing of your hand on or near the complainant's vagina inside her underpants. The least serious would be the touching of her body over or just under her jeans with the DNA evidence suggesting an attempt by you to undo the jeans.
20 Mr Polak submitted that the actions you took in the taxi, such as taking the fare by means of the complainant's debit card, threatening to go to the police if she did not pay, together with your knowledge that your location could be tracked by the taxi company and the security camera images of what took place in the cab were retained for several hours afterwards, all amount to reasons which make it unlikely you have committed anything but the least serious offence.
21 I cannot be satisfied beyond reasonable doubt that the assault was constituted by the more serious of these possibilities. It follows that I cannot be satisfied as to any other possibility except the least serious, the one suggested by the DNA evidence itself. Accordingly I shall sentence you on that basis.
22 Mr Polak also raised the question of the safety of the verdict given that the complainant had appeared confused when she complained of the assault and became firmer about it after she had been informed by the police that the suspect had made an admission. This occurred after she had made her statement in which she alleged rape. The alleged admission was made after the record of interview had been conducted, and on application by Mr Polak at the pre-trial hearing was ruled inadmissible in the trial. The documentation of the admission was said to be the entering in the informant's notes where it appears in handwriting at an angle to the other notes for the relevant time with the appearance of possibly having been added later. The informant did not re-interview you on tape at this time. Because of the ruling which was sought and which was granted, Mr Polak could not cross-examine the complainant on the matter and the jury knew nothing of those circumstances.
23 I turn now to considering sentencing practice over the last few years in relation to the offence of indecent assault. Most of the offenders dealt with in the Magistrates' Court received a non-custodial sentence with just under a third of those being placed on a community based order. For those offenders sentenced to prison in the higher courts for this offence, none of the terms exceeded three years and the median was one year and six months. Most people were sentenced to a term between one and two years. A large number of mostly older offenders were given suspended sentences and a small younger group were placed on community based orders.
24 I have given very careful consideration to whether a non-custodial sentence is appropriate but in this case general deterrence is of great importance as I have already indicated. It is for that reason, including the factor of the breach of trust and an assault on a vulnerable young woman, that it warrants a term of imprisonment to be served immediately. All the other factors point to the exercise of leniency of which in this case can only be acknowledged by the imposition of a partly suspended prison sentence.
25 Would you stand now please, Mr Mir. I sentence you to ten months' imprisonment, seven months of which will be suspended for 12 months. That means you must serve three months in prison. After your release you must not offend again in any way which might attract a prison sentence as that would breach the suspended sentence and you would then have to serve the rest of the sentence unless you could show exceptional circumstances.
26 The prosecution seeks a disposal order and also an order under s.464 of the Crimes Act for the retention of the forensic sample obtained from you. You have consented to the making of those orders through your counsel and I make those orders now.
27 Are there any other matters that I have omitted, Ms Churchill?
28 MS CHURCHILL: Your Honour, I'm not sure if Your Honour stated the period of suspension?
29 HER HONOUR: 12 months. Any other matters, Mr Polak?
30 MR POLAK: There may well be vulnerability in custody - - -
31 HER HONOUR: Sorry, could you say that again?
32 MR POLAK: He may well be quite vulnerable in custody I would have thought and some care - - -
33 HER HONOUR: I have anticipated that and I have asked my associate to make the necessary enquiries. I'll just see what has happened there. Excuse me a moment, Mr Polak. Mr Polak, on the record of the orders that goes with your client, a number of matters have been raised for the attention of the custody centre, including the type of risk that I think you're referring to, so you can be assured that he will be given the necessary attention.
34 MR POLAK: Thank you, Your Honour.
35 HER HONOUR: Now, I’m not sure whether at the end of the trial I did extend my thanks to counsel. If I forgot to do that then I'll take this opportunity to thank you both for your assistance, both during the trial and at this end of the proceedings as well.
36 MS CHURCHILL: Thank you, Your Honour.
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