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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Md Kowsar ALI

Details

AGLC: R v Md Kowsar Ali [2008] NSWDC 319
Case: [2008] NSWDC 319
Decision Date: 14 November 2008

CaseChat Overview and Summary

The case of R v Md Kowsar ALI involved a dispute between the prosecution and the accused regarding the severity of the sentence for sexual offences. The matter was heard in the Supreme Court of New South Wales. The accused was charged with indecent assault and engaging in sexual intercourse without the consent of a vulnerable victim. The court was tasked with determining an appropriate sentence for the accused, taking into account the nature of the offence, the circumstances, and the impact on the victim.

The central legal issue that the court needed to address was the appropriate level of punishment for the accused's actions. The prosecution argued that the crimes committed were of a serious nature and warranted a lengthy sentence to ensure the safety of the community and to provide deterrence. The defence, on the other hand, submitted that the sentence should be lenient, considering factors such as the accused's background, the absence of a prior criminal record, and the possibility of rehabilitation. The court needed to balance these competing considerations and determine a sentence that was just and proportionate to the gravity of the offence.

The court, in delivering its judgment, considered the severity of the crimes, the vulnerability of the victim, and the potential for rehabilitation of the accused. The judge held that the crimes committed were of a serious nature, and the accused's actions demonstrated a significant breach of trust and a disregard for the victim's autonomy. The court further noted that the accused had taken advantage of the victim's vulnerability, which exacerbated the gravity of the offences. After weighing all relevant factors, the court sentenced the accused 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.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)