R v Md Kowsar ALI

[2008] NSWDC 319

CITATION:	R v Md Kowsar ALI [2008] NSWDC 319 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 September 2008 - 11 September 2008 16 September 2008 -17 September 2008
JUDGMENT DATE:	14 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment with an overall sentence consisting of a non-parole period of eight years and a head sentence of ten years and eight months.
CATCHWORDS:	Criminal law - Sentence - Indecent assault - Sexual intercourse without consent - Vulnerable victim - Taxi Driver.
PARTIES:	The Crown Md Kowsar Ali
FILE NUMBER(S):	DC 2008/11/0298
COUNSEL:	S Huggett (Crown) L McSpedden (Defendant)
SOLICITORS:	NSW DPP McGowan Lawyers (Defendant)

SENTENCE

1 HIS HONOUR: On 3 November 2007 Ms Jessica Loiterton went out socialising with some of her friends. She drank more than she should have and her friends decided to send her home in a taxi, giving her money for that purpose. The taxi driver who picked her up was the offender. He took advantage of her extremely vulnerable state by indecently assaulting and then raping her. He now stands to be sentenced for those offences.

2 When Ms Loiterton got into the taxi she was significantly intoxicated. She had already vomited and did so once more whilst in the taxi. The offender well knew the state Ms Loiterton was in, seeing her vomit out of his taxi window. She was drifting in and out of sleep. She did recall however that at one stage the offender began to touch her. She said that he reached up her sleeve and moved his hand down on to her breasts. Ms Loiterton had done nothing to invite such attention and conveyed her lack of consent by pulling away from him and saying, “no, don’t.” That assault upon Ms Loiterton is the first of the counts in the indictment, an offence of indecent assault carrying a maximum penalty of five years imprisonment.

3 Some time later, the offender further indecently assaulted Ms Loiterton, by touching her between the legs. She must have been asleep at the time of this offence because she has no memory of this occurring. However, when interviewed by police the offender told police that this is what he did, but he claimed it was part of consensual sexual activity initiated by Ms Loiterton. The jury clearly rejected that version of events and found the offender guilty of this offence as well. It also carries a maximum penalty of five years imprisonment.

4 At one stage Ms Loiterton awoke to find that the taxi had stopped. She did not know where she was. The offender caused her to move from the front seat, where she was sitting, to the back seat of the taxi. He took down the right side of her pants, removed a tampon from her vagina, and then raped her by putting his penis inside her vagina, having sexual intercourse with her until he ejaculated. Ms Loiterton could not have indicated her lack of consent to this activity in any clearer manner. She said, “no, no, no” and then started crying as the offender commenced to rape her. She said, “no, don’t, take me home now,” when the offender persisted. The offender did not stop.

5 After he was finished Ms Loiterton was able to grab her mobile phone, get out of the taxi and call triple 0. The recording of the telephone call was played to the jury. It was very powerful evidence in the Crown case, demonstrating clearly the distress of a young woman who has just been violated by a complete stranger.

6 The case for the accused at trial was that Ms Loiterton initiated the whole thing. According to the defence case it was Ms Loiterton who asked the accused to touch her on the breast and then, when she got into the back seat of the taxi, said, “fuck me.” Ms McSpedden, who appeared for the offender, submitted to the jury that the reason that Ms Loiterton was distressed when she got out of the taxi shortly after having sexual intercourse with the accused was that, because of her intoxication, she had no memory of having consented to what took place. One only has to state the substance of the defence argument to demonstrate its implausibility.

7 Character evidence was called by the accused at trial, although he did not give evidence himself. Even today he has not given evidence but has instead relied on a handwritten document which he asked me to read. At his trial one of his character witnesses said that, from his limited understanding of what was alleged to have occurred, it was the offender who was the victim. I have, of course, to be careful not to impose a longer sentence than would otherwise be appropriate because of the way in which the offender conducted his defence. He was of course entitled, without penalty, to plead not guilty and to put forward a palpably false version of events which portrayed the complainant as a woman prepared to have sex with a complete stranger in the back of a taxi. I mention the nature of the defence case because it is relevant for other purposes, including whether the offender has shown remorse, and his prospects of rehabilitation. I will say quite clearly that the offender has shown no remorse whatsoever. He maintains his version of events when speaking to Probation and Parole officers and a psychologist who prepared a report that was tendered before me today.

8 I repeat, he has shown no remorse. I cannot therefore find that he has good prospects of rehabilitation or that he is unlikely to re-offend in the future. Perhaps the only thing that might tend to suggest that he may not re-offend in the future is the substantial sentence I shall shortly impose upon him.

9 It is perhaps appropriate to say something about the conduct of Ms Loiterton and her friends that evening. I would hope that what I am about to say is unnecessary but in case there are those that consider that to some extent Ms Loiterton was the author of her own misfortune, I want to say in clear and unmistakeable terms that Ms Loiterton and her friends were completely blameless and no one should think that they contributed in the slightest way to the events I have described. Ms Loiterton’s friends were entitled to assume that they had looked after her in her vulnerable state by ensuring that she got a taxi and giving her enough money to pay for the taxi. Ms Loiterton was entitled to assume that, even if she became intoxicated, a complete stranger would not take advantage of her vulnerability by raping her.

10 I repeat Ms Loiterton and her friends were blameless. Householders who do not put iron bars on their windows are not blamed if someone breaks into their home. Victims of fraud are not blamed for being taken in by clever con men and Ms Loiterton and her friends cannot be blamed for the predatory behaviour of the offender.

11 It is clear that there must be a substantial component of general deterrence built in to any sentence to be imposed upon the offender. It is a fact of life that every day of the week many members of society drink more than they should, and then need to get home safely. What are they supposed to do? They cannot drive. If they try and get public transport they can be refused access to what little public transport there is these days, and often the only real alternative is to get a taxi. There must be many young people, vulnerable because of their intoxication, in taxis every night of the week, many of whom would be easy prey at the hands of an offender such as Mr Ali. A message must be sent to those who might be tempted to take advantage of that situation for their own sexual gratification, that if they do, they will go to gaol for a long time.

12 The offence of sexual intercourse without consent carries a maximum penalty of fourteen years imprisonment. It has a standard non-parole period of seven years. The standard non-parole period is appropriate for an offence in the middle of the range for objective seriousness. Here the objective seriousness was high, involving full penile/vaginal intercourse, including the offender ejaculating. He did not, of course, use a condom. I should interpolate here that I have found beyond reasonable doubt that the offender did ejaculate inside Ms Loiterton’s vagina. His counsel made a submission at trial that what occurred was some form of coitus interruptus, with the accused managing to delay ejaculation until he got back in to the front seat of the taxi. Given the finding of semen containing DNA which matched that of the accused in Ms Loiterton’s vagina, and the extreme unlikelihood that the offender could have delayed ejaculation until he got back in to the front seat of his cab and driven away, I am satisfied beyond reasonable doubt that the offender, whom I repeat was not using a condom, ejaculated in Ms Loiterton’s vagina.

13 The non-sexual violence associated with the offence appears to have been relatively minor, but that was precisely because of the complainant’s vulnerability. Had the offender occasioned actual bodily harm to Ms Loiterton he would have been guilty of a different offence, and it is not a mitigating feature of one offence that a more serious offence was not committed.

14 In assessing whether the offence does fall within the mid range of objective seriousness I take into account the form of the sexual intercourse, the fact that there was ejaculation, that Ms Loiterton was extremely vulnerable and that the offence was premeditated. I am able to find that it was premeditated because the evidence establishes that the offender deviated from the route he would otherwise have taken in order to go in to the back street where the offence took place. I am also satisfied, and I am satisfied beyond reasonable doubt, that the offender turned off the security camera in the taxi in order to ensure that there was no photographic record of what he did. The evidence at trial established that a driver could switch off the security camera by means of a switch located under the back seat. When the taxi was stopped, police found that the back seat was not in its proper position. On top of that, there is the obvious circumstance that there was a substantial gap between the last photograph recorded on the security camera, and the next one, shortly before the police arrived.

15 It was in that substantial gap that these three offences occurred. The offences had terrible consequences for Ms Loiterton. These are entirely understandable. They are the sorts of things that occur almost invariably when a serious offence like this is committed. It is for that reason that the courts treat very seriously sexual assaults of this kind. I am, however, unable to take into account, as an aggravating feature, the effects on Ms Loiterton precisely because they are exactly what is expected from offences of this type. The Court of Criminal Appeal has held harm to a victim can only be taken into account as an aggravating feature when that harm is unusual or beyond what would be expected.

16 The offender is now twenty-two years of age. He was born in Bangladesh in 1985. His family remain there. He grew up in a poor farming family, which struggled to make ends meet. He came to Australia in 2005 on a student visa after having completed some aspects of his education in Bangladesh. He completed high school and started a mechanical engineering degree there, but that was left incomplete when he came to Australia. In 2006 he completed, in Australia, an accounting diploma and commenced studying for a bachelor of accounting. However, he did not complete that after being arrested and was bail refused. Whilst studying he supported himself with a number of jobs, including of course employment as a taxi driver.

17 The offender has no significant record, having only traffic matters on his criminal history. Apart from these current offences he appears to have been of otherwise good character. They are matters of mitigation which I will take into account in his favour. There are suggestions in some of the material before me today that the offender was sexually naïve, but it does not take much to understand just how wrong his conduct was. I repeat that he knew full well how vulnerable Ms Loiterton was when she got in to the taxi. Her description of drifting in and out of sleep and the fact that she vomited because of her intoxication made the offender fully aware of her vulnerable state. To take advantage of that situation as a taxi driver is a very serious matter indeed, requiring, as I said, a substantial component of general deterrence in the sentences I will now announce.

18 I have found, for the reasons I gave earlier, that the offence of sexual intercourse without consent is above the middle of the range of objective seriousness. Even taking into account the mitigating factors in the offender’s favour, I have determined that the non-parole period will be greater than that provided for an offence in the middle of the range, that is the seven year standard non-parole period sentence. I have also determined that the sentences for counts 1 and 2 on the indictment will be served wholly concurrently, they being part and parcel really of what occurred to Ms Loiterton that evening. There are no special circumstances in this case. To take into account matters such as the offender’s good character in making a finding of special circumstances would be to double count. It is the offender’s first time in custody and that has sometimes been held, indeed often been held, to be a special circumstance, but the non-parole period I will shortly announce is the shortest which I consider is appropriate in the circumstances of this case.

19 On counts 1 and 2 on the indictment the offender is sentenced to imprisonment. I set fixed terms of two years to commence 4 November 2007, the day on which Mr Ali went into custody. Those sentences are fixed terms because of the sentence I will now announce on count 4.

20 On count 4 on the indictment the offender is sentenced to imprisonment. I set a non-parole period of eight years to commence on 4 November 2007 and a head sentence of ten years and eight months. The offender is therefore eligible to be released to parole on 3 November 2015.

21 The period of eligibility for parole is two years eight months.

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