R v Ali (No 4)

[2020] ACTSC 350

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ali (No 4)
Citation:	[2020] ACTSC 350
Hearing Date:	17 December 2020
Decision Date:	17 December 2020
Before:	Mossop J
Decision:	See [42]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – two counts of act of indecency without consent – one count of sexual intercourse without consent – victim and offender were work colleagues – offences occurred following a night out – found guilty by jury trial – no evidence of remorse – limited criminal history – good prospects of a lawful life – sentence of imprisonment
Legislation Cited:	Crimes Act 1900 (ACT), ss 54(1), 60(1)
Cases Cited:	R v Aroub [2017] ACTSC 187 R v Ballantyne (Unreported, ACT Supreme Court, Murrell CJ, 1 April 2014) R v Buda-Kaa [2013] ACTCA 46 R v Kindl [2015] ACTSC 128 R v Lindsay [2020] ACTCA 25 R v Maafu [2020] ACTSC 328 R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Taylor [2015] ACTSC 43 R v UG [2018] ACTSC 243 Wyper v The Queen [2017] ACTCA 59
Parties:	The Queen (Crown) Haider Ali (Offender)
Representation:	Counsel
S Janackovic (Crown) R Thomas (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Eidelweisz Lawyers (Offender)
File Number:	SCC 92 of 2017
MOSSOP J:
Introduction

1. The offender, Haider Ali, was found guilty by a jury of two counts of committing an act of indecency on the victim without her consent, being reckless as to whether she was consenting. This is contrary to s 60(1) of the Crimes Act 1900 (ACT) and the maximum

penalty is seven years’ imprisonment. The offender was also found guilty of one count

of sexual intercourse without consent, being reckless as to whether the victim was consenting. This is contrary to s 54(1) of the Crimes Act and the maximum penalty is 12

years’ imprisonment.

2.       This is another case to which the comments of Elkaim J in R v Maafu [2020] ACTSC 328 at [5] apply. It falls into the third category identified by his Honour.

Facts
3.	The offender and the victim were work colleagues who had worked together for approximately three years. On Saturday 8 October 2016 the victim and her friend, who I
will refer to as LM, planned to have a night out in Canberra City. The victim drove to LM’s
residence at approximately 6pm that evening and brought some spare clothes as she intended to stay in the spare room following their night out.
4.	The victim and LM attended a number of venues and, over the course of the evening, the victim had a number of drinks. After attending another venue, the victim and LM went to Mooseheads at around 4am. There, the victim saw the offender. He was with a friend who was visiting him from Melbourne. The group all chatted. All were intoxicated to a greater or lesser extent.
5.	While at Mooseheads the offender wrote memos on…