Magedi v The Queen
[2019] VSCA 102
•13 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0264
| MOHAMMAD EHSAN MAGEDI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2019 |
| DATE OF JUDGMENT: | 13 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 102 |
| JUDGMENT APPEALED FROM: | DPP v Magedi (Unreported, County Court of Victoria, Judge Fox, 3 August 2018) |
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CRIMINAL LAW – Appeal – Sentence – New evidence – Risk of deportation – Robbery, common assault (2), indecent assault, sexual assault – Guilty plea – Sentence 3 years and 10 months’ imprisonment, non-parole period 2 years and 5 months –Automatic cancellation of visa – Prospect of deportation not raised before sentencing judge – Imprisonment more burdensome because of fear of deportation – Whether lesser sentence should be imposed – Very serious offending – Significant criminal record – Sentences very moderate – No reasonable prospect of less severe sentence being imposed – Leave to appeal refused – Guden v The Queen (2010) 28 VR 288, Allouch v The Queen [2018] VSCA 244 considered – Migration Act 1958 (Cth) s 501(3A), Criminal Procedure Act 2009 s 280.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Vernon Da Gama & Associates |
| For the Respondent | Ms A S Ellis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA:
The applicant pleaded guilty in the County Court at Melbourne to a series of charges contained in two separate indictments. In summary, these charges and the sentences imposed upon them were as follows:
Charge No
Offence
Maximum
Sentence
Cumulation
Indictment H10940177
1. Robbery
[s 75 CrimesAct 1958]
15 years 1 year and 9 months Base 2. Common Assault
[s 31 CrimesAct 1958]
5 years 6 months 3 months Total Effective Sentence: 2 years’ imprisonment with 10 months to be served cumulatively upon the sentences passed on Indictment G13559482.1 Indictment G13559482.1
1. Indecent Assault
[s 39 CrimesAct 1958 as at 16 June 2014]
10 years 1 year and 8 months Base 2. Sexual Assault
[s 40 CrimesAct 1958 as at 24 March 2016]
10 years 1 year and 8 months 10 months 3. Common Assault
[s 31 CrimesAct 1958]
5 years 1 year 6 months Total Effective Sentence: 3 years’ imprisonment.
Total Effective Sentence:
3 years and 10 months
Non-Parole Period:
2 years and 5 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
528 days
S6AAA Statement: 8 years with a non-parole period of 4 years
Other relevant orders: Compensation order for $6,000, Sex Offender Registration for 8 years
Background Facts
As can be seen from the table set out above, in relation to Indictment H10940177, the applicant pleaded guilty on 13 April 2018 to one charge of robbery and one charge of common assault. As regards Indictment G13559482.1, he pleaded guilty on 18 July 2018 to one charge of indecent assault, one charge of sexual assault, and one charge of common assault.
It is convenient to refer to these indictments, as the sentencing judge did, as ‘the robbery indictment’, and ‘the sexual assault indictment’ respectively.
Her Honour summarised the background facts concerning the sexual assault indictment as follows. In June 2014, the first victim, ‘C,’ created an account for herself on an internet dating site. She gave her age as 19, because 18 was the minimum age required. She was in fact aged 16.
The applicant contacted her on that site, and she told him that she was 17. He arranged to meet her on the following afternoon, at Federation Square. That day, C caught the train to Flinders Street Station. It was raining heavily. The applicant telephoned her and said that he could not find a parking spot, and suggested that she get into his car when he got to the station because it was raining.
Once C got into the car, the applicant drove a short distance to a public car park in Flinders Street. He parked in a parking bay on one of the higher levels. The applicant and C conversed for a while. After a time, they both moved into the back seat at his suggestion. He said to her ‘you’re making me very horny right now’. He began to kiss her face and neck, and to touch her body. She pushed him away, saying that she had thought they were just going to talk.
He stopped momentarily, and then resumed kissing and touching her. She kept asking him to stop, but he did not. The applicant then touched her in and around the vaginal area, over her clothing. In order to deter him, she said that she was having her period. He removed his hand but kept kissing her. These actions were all treated as uncharged acts, providing context and background to the indecent assault. The judge made it clear that the applicant was not to be sentenced for that conduct.
The applicant then asked C whether she had ‘ever given head’ before? He pulled down his pants and exposed his penis, grabbed the back of her head and pulled her face down onto his crotch. She felt his penis against her face. She did not consent to the sexual contact. It constituted the charge of indecent assault. The applicant then stopped what he was doing and drove C back to Flinders Street Station, where she got out of the car, and he drove off.
C subsequently made a police report and a VARE statement. As a result, the applicant was interviewed by police. He made a ‘No comment’ record of interview. C decided that she did not wish to proceed with the matter at that time. She was contacted in 2016, during the investigation in relation to the second victim, and decided to proceed with her complaint.
The second victim on the sexual assault indictment was ‘M’, a United States citizen aged 18 at the time of the offence. She arrived in Australia on 17 March 2016. A week or so later, she created a Tinder profile in order to meet people. The applicant contacted her and the two of them exchanged messages.
The applicant arranged to meet M at a café in Chapel Street. She told him from the outset that she would not be having sex with him that night. He indicated that this was acceptable to him. She arrived at the café at 7:00pm. The applicant called her to say that he was running late. She told him that the café was busy, and he suggested a movie instead. The applicant pulled up in his vehicle on Chapel Street and M got into the front seat. He asked her for ID to make sure she was over 18. He then leant over, and kissed her on the mouth, immediately apologising and saying that he could not help himself.
There was then conversation about seeing a movie. The applicant drove to a reserve and parked. He told M that there was about 25 minutes before the movie would begin. He got out of the driver’s seat and sat in the back seat. He asked M to join him, which she did. As soon as she got into the back seat, he began kissing her. It seems that she was initially fine with that, but he kept trying to feel her breasts. She kept moving his hand away. He eventually grabbed her tank top and ripped it. He apologised and they both resumed kissing. He then tried to unbutton her pants. She resisted. He started begging her, but she refused. Once again, all of this conduct amounted to uncharged acts.
The applicant then kissed M again, but was rougher. He undid his pants and exposed his penis. He grabbed her by the back of her head and forced her face towards his penis. She shouted ‘no’ and resisted. He then punched her two or three times to the face with his clenched right fist. This conduct constituted both the charge of sexual assault, and the charge of common assault. M broke free and got out of the car. She told the applicant that she would call the police if he did not take her back to where they had met. He agreed, and did so.
The applicant was interviewed regarding the latter two offences. He lied about his involvement. There was a contested committal in August 2017, with the trial listed to start in July 2018 on a different indictment containing more serious charges. Eventually, the original charges were withdrawn, with the charges set out in the table above substituted for them. They resolved to a plea of guilty.
M provided a victim impact statement which indicated that she had suffered stress and depression, as well as the physical injury from being punched in the face. It seems that the effects were long lasting, although not said to be ongoing.
As regards the robbery indictment, the victim of the robbery, ‘S’, listed a vehicle for sale on Gumtree. On 11 December 2016, an acquaintance of the applicant, ‘K’, inspected the vehicle and agreed to purchase it for $6,000. On 15 December 2016, S and K met to effect the sale. The applicant attended with K. Transfer papers were completed and signed. The purchase price was paid in cash and K was given the keys to the car.
Two days later, the applicant, purportedly on behalf of K, telephoned S and told him that the car was not working, and would not start. He identified himself as K’s friend, and told S that he wanted to speak to him face to face. S replied that he had sold the car in good condition, and with a roadworthy certificate. The applicant insisted that he was not seeking to return the car, but merely wanted to speak to S personally.
Eventually, S agreed that the applicant could come and see him on the following day. At about 7.00pm that evening, S arrived home when he was approached by the applicant and another male. S was sitting in the driver’s seat of his car when the applicant opened the driver’s door and said ‘you gave me a shit car’. He then punched S twice, to the left side of his face. He said ‘I want my money back’. He told S that he had a gun, and threatened to kill him. S did not see a weapon.
The applicant again told S that if he did not return the $6,000 or if he went to the police, he would kill him. He said he would return in about 30 minutes for the money.
S then telephoned a friend, ‘A’, and told him what was happening. He asked A to come to his home. S was waiting for his friend to come to his home, presumably to protect him, when he heard banging on his front door. He opened the door, and saw the applicant behind it.
The applicant at once punched S to the left side of his face. S pleaded with him not to harm him. The applicant then asked S if he had the money and S replied that he was waiting for his friend to bring it. The applicant said that he would give S 15 minutes and if the money was not there, he would kill him.
In the meantime, A arrived at S’s home. He parked some 200 metres from the house as he was frightened to get too close. As he was walking towards the house, he saw three or four males in a blue vehicle, driving away from the house in his general direction. The car stopped, and the applicant got out of the rear passenger seat. He was holding a knife. He said to A ‘it’s a piece of shit car’. Two other unknown males also got out of the car. They were both armed with knives and they all chased A.
It was the applicant’s threat to A while armed with a knife that constituted the separate charge of common assault on the robbery indictment.
The applicant then returned to S’s address around five minutes later. He was accompanied by one of the unknown males. S was still in fear and, for that reason, handed over $6,000 cash in an envelope.
It was that conduct which constituted the charge of robbery on the robbery indictment. The applicant told S that the car would be returned later that night. He told S that if he contacted the police, he would be killed.
At about 9.00pm that night, K texted S asking that the advertisement for the sale of the car be removed from Gumtree. S asked K about the car, and was told that it was ‘all right’. He told K that he had given the applicant $6,000, and been told that the car would be returned. K replied that he knew nothing about any of this, but said that he would call S back.
A few minutes later, the applicant telephoned S and asked him who had told K about the events of that evening. The car was never returned and, as at the date of sentence, it was still registered in K’s name.
When interviewed by police, the applicant denied knowing K, and claimed that he knew nothing about any of this offending. A victim impact statement filed by S indicated that, apart from the physical injuries that he sustained by being punched to the face, he had suffered trauma, and sustained significant financial loss. He said that he felt fearful and nervous in crowds, and was haunted by what had happened to him.
The sentencing judge found that, as regards the robbery, K had not asked the applicant to recover the $6,000. Moreover, he was not dissatisfied with the car. The robbery was simply committed by the applicant in order to obtain the money that he knew had been paid to S several days earlier.
Sentencing remarks
The sentencing judge accepted that the applicant’s pleas of guilty were evidence of some remorse. They also had utilitarian value, and had spared the victims the ordeal of giving evidence at trial.
Her Honour set out in some detail the applicant’s personal circumstances. She noted that he was aged 32 at the time of the plea, having been born in Afghanistan. He came to this country in 2003 with his mother, older brother and a younger sister. They had fled Afghanistan due to the war, and because of fear of the Taliban. The family had spent seven years in Pakistan in refugee camps, and had eventually been sponsored by the applicant’s maternal uncle to come to Australia.
The judge noted that the applicant had lost a significant number of family members whilst in Afghanistan. The applicant’s father, and another brother, had been shot dead in front of him when he was aged only five. Within a year, he also lost two uncles and his grandmother in a suicide bombing. Two of his aunts had been killed for not being ‘practising Muslims’. It seems that they were burned alive in a public forum. In 2016, three other cousins had been killed in a further suicide bombing.
The applicant had achieved a fairly good command of English soon after arriving in Australia. He was placed in age-relevant classes, and made friends reasonably well. He completed Year 12 and went on to complete an apprenticeship in panel beating. He had a good employment history.
The applicant had been in a long-term relationship for eight years, but that ended in 2011 as his partner’s family did not approve of his religious beliefs. The applicant had subsequently fathered a child, with whom he had little or no contact.
A psychological report noted that the applicant suffered depression, anxiety and post-traumatic stress disorder. Apparently, he had been stabbed in 2012 when he interrupted an offender who was breaking into his aunt’s car. He did not use alcohol, and had only smoked cannabis on a recreational basis while at high school. For a period after he was stabbed, he used methamphetamine, but that ceased within about 12–18 months.
As regards the sexual offences, the applicant found it difficult to discuss them. He was said to be remorseful, and apologetic for any distress caused to the victims. The report concluded that he presented a low risk of reoffending. That assessment was not challenged.
The judge found that the applicant had experienced a difficult time whilst on remand. He had made the mistake of telling fellow prisoners that one of the charges involved sexual offending against a 16 year old girl. As a result, he had been targeted by other prisoners and, at one point, stabbed at the back of the head. He spent substantial time in protection.
The applicant had a number of previous Magistrates’ Court appearances, for dishonesty offences, violence, and contravention of court orders. He had been placed on an 18 month Community Correction Order just 10 days prior to the robbery. The judge concluded that he had reasonable prospects of rehabilitation and took that into account in fixing a minimum term.
When the applicant was sentenced on 14 September 2018, he had already served 528 days as pre-sentence detention. With the additional 242 days which have passed between the date on which he was sentenced and the day of hearing this application, the applicant will have served 770 days, which of course, is less than the two years and five months that represents his non-parole period.
Grounds of appeal
By notice filed on 5 December 2018, the applicant seeks leave to appeal against the sentence imposed below on the following ground:
Ground 1: New evidence establishes that the applicant is a non-citizen liable to deportation, a circumstance that was not raised before the sentencing court and could not have been taken into account by the sentencing judge.
Applicant’s submissions
In an affidavit dated 28 November 2018 the applicant stated that he was suffering a good deal of mental distress because of the fear that his visa might be cancelled. He is concerned at being separated from his family, with whom he is particularly close. Members of his family are anxious about his situation, which accentuates his own fears. He has no family in Afghanistan, having been aged three when he fled that country. If he were returned to Afghanistan, he would have no documentation, and would not be able to work. He would not be able to speak the local language.
In addition, the applicant deposes that his life would be in danger. He believes that he would be killed, or at least subject to persecution.
It is common ground that his ‘immigration status’ was not raised before the sentencing judge. Evidently, the applicant wrongly believed himself to be an Australian citizen. Subsequent inquiries revealed that he held a subclass 202 visa and, according to an affidavit sworn by his solicitor, was merely a permanent resident. This meant that his visa was liable to cancellation by the Minister if it were reasonably suspected that he did not pass the character test.
Section 501(2) of the Migration Act 1958 (Cth) (‘Migration Act’), in combination with subsections (6)(a) and (7), indicates that a person will not pass the character test if he/she has been sentenced to a term of imprisonment of 12 months or more, or two or more terms of imprisonment totalling 12 months or more. On 10 December 2018, the applicant received written notice that the Minister had exercised his power under s 501(3A) to cancel his visa. The notice of cancellation was provided to the Court.
The applicant relies upon this material as ‘new evidence’, not before the sentencing judge, which ought now to be taken into account in determining whether the sentence imposed should be set aside. The respondent did not object to the reception of the evidence.
The applicant relies upon Allouch v The Queen,[1] a decision of this Court delivered in September 2018. There, the applicant had pleaded guilty in the County Court to a series of fraud charges. He had been sentenced to an aggregate term of 12 months’ imprisonment with a non-parole period of 6 months. During the course of oral submissions before this Court, it emerged that at the time of the plea, contrary to what the applicant’s legal advisors had believed, the applicant may not have been an Australian citizen. It subsequently transpired that the applicant was, indeed, a permanent resident rather than an Australian citizen. That meant that he was a ‘non-citizen’ of this country, pursuant to the Migration Act, and therefore liable to be deported after the expiration of his term of imprisonment.
[1][2018] VSCA 244.
In Allouch the Court noted that the prospect of deportation following sentence was recognised as being a relevant sentencing factor.[2] The relevance of an offender’s immigration status, as regards the possibility of deportation, was twofold. First, it might be relevant to the hardship that would be experienced by an offender being in a state of uncertainty as to whether at the end of their sentence, they might be uprooted and forced to return to their country of origin. Secondly, deportation amounted to additional punishment because it destroyed the opportunity to permanently settle in this country. Consistently with authority, the Court in Allouch said that the prospect of deportation should only lead to a lesser sentence where there was sufficient evidence of both the risk of deportation and the impact of that risk.
[2]See Guden v The Queen (2010) 28 VR 288; Konamala v The Queen [2016] VSCA 48; Da Costa Junior v The Queen (2016) 258 A Crim R 60.
In Allouch the applicant was sentenced to 12 months’ imprisonment. Inadvertently, the sentencing judge was not informed of his immigration status. On the appeal, it was conceded that a sentence of less than 12 months’ imprisonment would almost certainly have been imposed had the judge been aware of the true facts. This was said to be a matter of real significance, as the provision for mandatory visa cancellation applied to an offender sentenced to imprisonment for 1 year or more (unless the Minister could be persuaded not to cancel the visa).
The Court allowed the appeal and resentenced the applicant to, effectively, time served. That was more than the 6 months’ non-parole period that had been fixed. It was said to be, in effect, a pragmatic solution designed to achieve a just outcome in that particular case. The sentence of ‘time served’ was accepted to be significantly less than was merited by the offences themselves.
Respondent’s submissions
The respondent accepted that the prospect of deportation was a relevant factor to be taken into account as part of the sentencing process. The respondent also accepted that the prospect of deportation back to Afghanistan would render the applicant’s time in prison more burdensome than otherwise would be anticipated. The prospect of deportation would also be additionally punitive given the applicant’s particular circumstances. In short, the respondent accepted that it was open to this Court to impose a lesser sentence, should it be minded to do so, although the present sentence could hardly be described as stern.
It was strongly emphasised, however, that this was not a concession that a sentence of less than 12 months’ imprisonment — avoiding the triggering provision of s 501(3A) — would be open. In any event, if the charge involving C on the sexual offence indictment was a ‘sexually based offence involving a child’, it might trigger s 501(3A)(a)(ii).
During oral argument, the respondent drew attention to the applicant’s previous and subsequent convictions. In April 2012, he was found to have contravened a Community-Based Order imposed in relation to some traffic offences, including exceeding .05, unlicensed driving and fraudulently altering a required notice. In February 2014, he was convicted of recklessly causing injury and arson, and sentenced to a 12 month Community Correction Order. In September 2014, he was convicted of burglary, theft, unlicensed driving and failing to answer bail, and placed on a further 12 month Community Correction Order with the requirement that he perform 150 hours of community work.
In December 2016, he was dealt with for a series of traffic offences, as well as stalking, breach of an intervention order, unlawful assault and threat to kill. He was held to have breached the Community Correction Order imposed in February 2014, and that order was renewed for a further 12 months.
The respondent submitted that the applicant had been afforded considerable leniency in the past, but had not taken advantage of that benevolence. His record suggested that specific deterrence was an important sentencing consideration. Given the seriousness of the sexual offences and the robbery, the sentences imposed below should be seen as very moderate.
The risk of deportation
In Guden v The Queen,[3] this Court held that the prospect of an offender’s deportation was a factor which could bear on the impact a term of imprisonment would have on an offender, both during the period of actual incarceration and upon release. It might mean that the burden of imprisonment would be greater for that person than for someone who faced no such risk. Moreover, in an appropriate case, it would be proper to take into account the fact that a sentence of imprisonment would result in the offender losing the opportunity of settling permanently in Australia.
[3](2010) 28 VR 288.
The Court emphasised, however, that a sentencing court could not be asked to speculate as to the risk of deportation. If all that could be said was that a term of imprisonment of more than 12 months would, upon its expiry, enliven the power of the relevant Minister to revoke an existing visa, then deportation might properly be viewed as a completely speculative possibility. In such circumstances, a judge would not err in declining to take into account the possibility of deportation.
In subsequent decisions which followed the introduction of the mandatory cancellation provision, the Court held that the principles laid down in Guden remained applicable. While it could be assumed that a sentence of 12 months or more would result in automatic cancellation, the Minister had a discretion to revoke the cancellation, and there would inevitably be uncertainty as to whether that discretion would be exercised.[4]
[4]See Konamala [2016] VSCA 48; Da Costa (2016) 258 A Crim R 60.
That is the position in the present case. The applicant’s visa has been cancelled, and he has foreshadowed an application for revocation. We proceed on the assumption, therefore, that uncertainty about whether the cancellation will be revoked is a matter weighing heavily on his mind.
Nothing said in Allouch alters the approach to be adopted. It was, as we have indicated, a very special case. The applicant there had been sentenced to a term of exactly 12 months’ imprisonment. That meant that he fell within s 501(3A), as a person who, presumptively, would be held to have failed the character test, and accordingly, was to be deported. The onus was upon him to persuade the Minister that the ordinary course should not be followed, and that he should be permitted to remain in Australia after his sentence had expired.
In Allouch, the Crown made the enormously important concession that, had the sentencing judge been aware of the fact that the applicant was not an Australian citizen, but merely a permanent resident, that would have resulted in a sentence of less than 12 months, thereby avoiding what might be described as a ‘reverse onus’ situation. Of course, the applicant in that case might still have been ordered to be deported on general character grounds, but he would not have faced presumptive deportation of the kind mandated under s 501(3A).
Consideration
Section 280 of the Criminal Procedure Act 2009 provides that this Court may refuse an application for leave to appeal against sentence if it concludes that there is no reasonable prospect of a less severe sentence being imposed than the sentence first imposed, or that it would reduce the total effective sentence despite there being an error in the sentence first imposed.
In our view, there is no reasonable prospect of a reduction in any of the sentences imposed on the applicant, or in the total effective sentence, and hence leave to appeal must be refused. We reach this view giving full weight to the mitigating factor of the prospect of deportation.
Two factors are decisive: the seriousness of the offending, and the applicant’s criminal record. We deal first with the sexual offences. As is apparent from the summary set out earlier, both of these sexual assaults were at the highest end of seriousness for offending of this kind. On both occasions, the applicant was attempting — by force — to penetrate the mouth of the victim with his penis. On each occasion, the applicant pursued his own sexual gratification despite an obvious lack of consent.
Moreover, as was pointed out in the hearing, almost two years separated the two sexual assaults. The first occurred in June 2014. As noted earlier, the applicant was interviewed by police about the victim’s allegation. Although the matter was not proceeded with at that time, he was on notice that such conduct was likely to result in criminal proceedings. Despite that warning, he committed a very similar offence less than two years later, in March 2016. On this occasion, he used more force than he had on the first occasion, persisting against the victim’s active resistance, and then punching her in the face.
Given the objective gravity of these offences, the aggravating features associated with them, and the applicant’s persistence, a sentence of 20 months’ imprisonment on each charge seems very low indeed. Doubtless, the judge viewed the applicant’s shocking personal history as a significant mitigating factor. Even allowing for that factor, considerably higher sentences would have been appropriate.
The offences on the robbery indictment were also very serious. At the time of the robbery, the victim (S) was already in fear because of the two previous assaults by the applicant, each of which involved punching S to the face. Following the earlier demand for the $6,000, the applicant had threatened S that he would be killed if he called police. He later threatened to kill him if he did not produce the money. The prosecution summary, on which the sentencing proceeded, treated the prior assaults and threats as contributing to S’s state of fear, which led him to comply with the applicant’s demand for money.
The charge of common assault related to the applicant’s threatening approach to A. The applicant was holding a knife when he said to A, ‘It’s a piece of shit car’. The summary also referred in this context to the fact that A was chased by two others who had been in the vehicle with the applicant, and who were also armed with knives.
In those circumstances, sentences of 21 months for robbery and six months for assault (of which only three months were cumulated) were also very lenient. As already noted, the applicant had a significant prior history, including offences of dishonesty and violence. It was particularly relevant, in our view, that the robbery was committed only 10 days after the applicant was placed on an 18 month Community Correction Order. In the circumstances, both general and specific deterrence had to be given considerable weight.
For these reasons, leave to appeal will be refused.
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