Rahman v R

[2020] NSWCCA 13

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Rahman v R [2020] NSWCCA 13
Hearing dates:	5 February 2020
Date of orders:	14 February 2020
Decision date:	14 February 2020
Before:	Macfarlan JA at [1]; Adamson J at [2]; Beech-Jones J at [3]
Decision:	(1)   Leave to appeal be granted. (2)   The appeal be dismissed.
Catchwords:	CRIMINAL LAW – appeal - appeal against sentence – offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 – whether sentencing judge erred in referring to sexual act constituting sexual intercourse “in this country” – whether sentencing judge erred in approach to specific deterrence – whether sentence imposed was manifestly excessive – consideration of sentences imposed for comparable offences – leave granted – appeal dismissed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Afghan-Baig v R [2018] NSWCCA 15 Ali v R [2010] NSWCCA 35 Ali v R [2014] NSWCCA 45 Aslan v R [2014] NSWCCA 114 Bullock v R [2016] NSWCCA 131 DPP v Dowd [2018] NSWCCA 102 DPP v Newitt [2019] VCC 2030 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40; Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 McGrory v R [2018] NSWCCA 226 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39, Nand v R [2014] NSWCCA 293 Naveed v R [2019] NSWCCA 149 NM v R [2012] NSWCCA 215 Norman v R [2012] NSWCCA 230 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Gerard Cortese [2013] NSWCCA 148 R v Rahman [2019] NSWDC 173 R v Randall [2018] QSC 100 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Tisalandis [1982] 2 NSWLR 430 Rajendran v R [2014] NSWCCA 113 Stewart v R [2012] NSWCCA 183 The Queen v Allan [2019] VSC 18 Vaisu v R [2017] NSWCCA 71 Wan v R [2019] NSWCCA 86 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Maksudur Rahman (Applicant) Regina (Respondent)
Representation:	Counsel: K Averre (Applicant) M Kumar (Respondent)   Solicitors: Powerhouse Law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2018/29027
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: [2019] NSWDC 173 Date of Decision: 6 February 2019 Before: Colefax SC DCJ File Number(s): 2018/29027

Judgment

1. MACFARLAN JA: I agree with Beech-Jones J.

2. ADAMSON J: I agree with Beech-Jones J.

3. BEECH-JONES J: This is an application for leave to appeal from a custodial sentence imposed by his Honour Judge Colefax SC in the District Court on 6 February 2019 for an offence of having sexual intercourse with another person without their consent contrary to s 61I of the Crimes Act 1900. At the time of sentencing, another offence under s 61I was included on a form filed by the Crown Prosecutor pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”) (ie, a “Form 1”). The maximum penalty for an offence under s 61I is 14 years imprisonment and the standard non-parole period is seven years imprisonment. His Honour sentenced the applicant to a term of imprisonment of 6 years with a non‑parole period of 4 years and 6 months.

4. For the reasons that follow I propose that the applicant be granted leave to appeal but the appeal be dismissed.

Facts of the Offending and the Sentencing Judgment

5. The circumstances of the applicant’s offending were set out in his Honour’s sentencing reasons (R v Rahman [2019] NSWDC 173) which in turn reflected the effect of an agreed statement of facts. In summary, as at January 2018, the applicant was working as a kitchenhand in a restaurant in Sydney. He was then 36 years of age. The victim who was 24 years old was also employed in the restaurant. She is a citizen of Holland who was present in Australia on a working holiday visa.

6. Late on the evening of 27 January 2018, the applicant, the victim, and other employees, were “relaxing and drinking alcohol” at the end of their shift. Both the victim and the applicant became intoxicated. By around 3.30am, all but four of the employees had left. Ultimately just the applicant and the victim remained. The victim indicated that she wanted to go home but the applicant pressured her to go back to his home. According to his Honour, the victim was “very reluctant” but her resistance was reduced by alcohol and the applicant was persistent. He eventually persuaded her to travel to his home which was a communal house in Strathfield that had been converted into individual rooms for the use of each occupier.

7. The applicant took the victim to his room. She offered to sleep on his couch but the applicant refused. At one point the victim fell asleep on the applicant’s bed and woke to find the applicant taking off her socks and kissing her. The sentencing judgment describes the balance of the events as follows:

“… You [the applicant] were kissing her. She [the victim] was not fully awake and she was confused, but she was not that confused to prevent her saying “no”. She said “no” repeatedly, but that did not discourage you from continuing what you were doing. You continued to kiss her and you took all of her clothes off. She was so disorientated she closed her eyes and tried to fall back to sleep.

While she was in this disorientated and confused state, you forcefully (and whilst she was saying “no”) committed cunnilingus upon her. In this country, that is sexual intercourse. She kept saying “no” and you kept doing it.

It is that particular form of sexual intercourse which is the matter on the Form 1, and it will significantly increase the sentence.

You eventually had penile vaginal intercourse with her. It was forced on her. She was not consenting to it and it was very painful to her. She does not know how long it went on for because of her intoxication.

When you finished, you remained in the bedroom and she went to sleep.

Later on in the morning when she woke, she was completely naked. She was horrified at what had happened to her and she dressed and fled.” (emphasis added)

8. The emphasised portion of the above extract is the subject of ground 1 of the application to which I will return.

9. After describing the circumstances of the offending, his Honour then addressed the various factors relevant to the imposition of sentence. Eight aspects of his Honour’s findings should be noted. As none of these is the subject of complaint, they can be briefly summarised.

10. First, his Honour assessed the objective seriousness of the offence as “slightly below the middle of the range”.

11. Second, his Honour described the effect of a victim impact statement which set out the significant impact on the victim including the suffering of nightmares, the necessity for weekly counselling and the compromising of her relationships with men. His Honour stated that the victim is suffering from post‑traumatic stress disorder. His Honour noted that this was “not a reaction unusual for this type of offence”, not so as to minimise the offence but for the purpose of determining whether the offence had some impact over and above what would otherwise be expected to follow from this type of offending, that being a potential matter of aggravation.

12. Third, his Honour described the applicant’s personal circumstances. At the time of sentencing the applicant was 38 years old. He was born in Bangladesh and was brought up in a supportive family. He completed a Master’s Degree in Accounting in Bangladesh. He had no history of criminal offending in this country or in Bangladesh. His Honour described the applicant as an “intelligent, mature person, adversely affected by alcohol, who took advantage of this situation which presented itself to [him] and [he was] a sexual predator on this occasion”.

13. Fourth, his Honour accepted the applicant’s expressions of remorse as genuine.

14. Fifth, his Honour accepted that the applicant had “quite reasonable” prospects of rehabilitation and that this offence was an opportunistic attack that was out of character.

15. Sixth, his Honour noted the applicant’s plea of guilty was entered at the earliest opportunity and that accordingly he was entitled to a 25% discount on his sentence.

16. Seventh, his Honour noted that the applicant was arrested on 29 January 2018 and had been held in custody since that date such that the sentence was imposed to commence from that date.

17. Eighth, his Honour considered, but ultimately rejected, a contention that a finding of “special circumstances” should be made (Sentencing Procedure Act, s 44(2)).

Ground 1 – Irrelevant Consideration

18. Ground 1 of the application contends that the “sentencing judge erred in taking into account an irrelevant consideration and thus erred in his approach to specific deterrence”.

19. This ground refers to the emphasised passage set out above at [7], namely, the statement of the sentencing judge that “in this country that [ie, cunnilingus] is sexual intercourse”. On behalf of the applicant it was contended that this statement was a reference to the fact that the applicant was not Australian and that “the only significance of this fact was the role this fact played in respect of the need for specific deterrence as a sentencing consideration”.

20. As I understand this contention, it appears to be asserting that the sentencing judge was somehow acting on the basis that a greater emphasis on specific deterrence was warranted in the case of the applicant, who was originally from Bangladesh, because “in this country”, as opposed to possibly elsewhere, cunnilingus constitutes sexual intercourse. It was contended that this was an irrelevant consideration and that it had no part to play in the sentencing proceedings (citing House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; “House”).

21. I consider that this complaint has no merit. The emphasised passage was no more than the sentencing judge discharging his duty of providing reasons that explained the legal and factual basis for the sentence that was being imposed.

22. Sentencing judges are under an obligation to give reasons for their decisions. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42] per Spigelman CJ). There are many functions of the provision of reasons for sentence but they include advising the affected litigant, in this case an offender, of the reason why an order is being made against them (see Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386F-G). Further in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [39], McHugh, Hayne and Callinan JJ approved a statement (by Sir John Barry, in his lecture on "The Courts and Criminal Punishments”) that the criminal law:

“…must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just.” (emphasis added)

23. The sentencing judge delivered his reasons in the form of an address directed to the applicant personally. This style of reasons for imposing sentence is commonly, but not invariably, adopted in at least Victoria and Queensland (see for example The Queen v Allan [2019] VSC 18; DPP v Newitt [2019] VCC 2030; R v Randall [2018] QSC 100). It is a practice that is sometimes adopted in the Local Court. It was previously common in the higher courts in this State although it is now less prevalent (see for example R v Tisalandis [1982] 2 NSWLR 430 at 435). There is nothing objectionable per se in delivering sentencing judgments in that form, provided that the substance of the reasons performs their necessary function.

24. In discharging the obligation to provide reasons in this case, his Honour was directing his comments to an offender whose first language was not English. During the sentencing hearing the applicant was cross examined about pinning the victim’s legs down while he performed cunnilingus upon her. He stated that he did not understand what that word meant. Further, in the passage in the sentencing judgment that immediately follows the reference to “in this country”, the sentencing judge explained that it was that form of intercourse (ie, cunnilingus) which had been included on the Form 1, whereas the penile/vaginal intercourse was the actus reus of the substantive count.

25. Considered in context, the objected‑to passage was simply his Honour explaining that, under the law that applied to this offending, cunnilingus is defined to be sexual intercourse and that it was that form of sexual intercourse that was the subject of the offence on the Form 1. The use of the phrase “this country” was not relevantly different to stating “in this jurisdiction”. It can be expected that persons unfamiliar with the legislative provisions governing sexual assault in New South Wales would nevertheless know that it was illegal to perform cunnilingus upon a person without their consent. However, it is not self-evident that all such persons, including but not restricted to persons from overseas, would necessarily understand that “sexual intercourse” is defined to include “cunnilingus”. Hence, in discharge of his duty to give reasons, the sentencing judge was doing no more than explaining to the offender and the public at large the basis upon which he was being sentenced.

26. Otherwise, there is nothing in the sentencing judgment to suggest that his Honour considered that, because the applicant was from another country, some greater emphasis on specific deterrence was warranted in his case for any sexual offence involving cunnilingus.

27. I propose that ground 1 be rejected.

Ground 2 – Manifest Excess

28. Ground 2 of the application contends that the sentence imposed by his Honour was “manifestly excessive”. To succeed in establishing this ground the applicant must establish that the sentence was “unreasonable” or “plainly unjust” (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]; “Hili” citing House at 505). That conclusion will only follow if this Court were to conclude “that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons” (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). Such a finding “does not admit a lengthy exposition” (Hili at [59]). Otherwise it is “not to the point that this Court might have exercised the sentencing discretion differently” and that “there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with the consistency of approach and application of principle” (see Vaisu v R [2017] NSWCCA 71 at [28] per RA Hulme J and cases cited thereat).

29. The applicant sought to establish a case of manifest excess by reference to an analysis of sentences that were either imposed, or at least considered, by this Court in other cases concerning offences under s 61I. There are very significant limitations on an attempt to use such decisions for the purpose of establishing a case of manifest excess. As was noted in Hili (at [54]), a review of earlier sentences only establishes a range of sentences that have in fact been imposed. It does not establish that range is the correct range or that the upper or lower limits of that range are the correct upper and lower limits. A review of sentences imposed in other cases is “useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal” (Wong at [59]). Otherwise, in reviewing sentences considered in this Court, it is necessary to consider the different contexts in which they are considered, namely whether they involve a review of a sentence imposed at first instance for manifest excess, the imposition of a fresh sentence by this Court following a successful appeal by an offender, a Crown appeal against a sentence imposed at first instance, and the exercise of the sentencing discretion by this Court on a Crown appeal. Each of those contexts has its own set of applicable principles.

30. In any event, even if one accepts the applicant’s analysis of sentences for offences under s 61I imposed or considered by this Court for roughly comparable offences, it is of no assistance to him.

31. The written submissions filed on behalf of the applicant identified fourteen such cases, namely, Ali v R [2010] NSWCCA 35; Stewart v R [2012] NSWCCA 183; NM v R [2012] NSWCCA 215; Norman v R [2012] NSWCCA 230; Ali v R [2014] NSWCCA 45; Rajendran v R [2014] NSWCCA 113; Aslan v R [2014] NSWCCA 114; Nand v R [2014] NSWCCA 293; Bullock v R [2016] NSWCCA 131; Afghan-Baig v R [2018] NSWCCA 15; DPP v Dowd [2018] NSWCCA 102; McGrory v R [2018] NSWCCA 226; Wan v R [2019] NSWCCA 86; Naveed v R [2019] NSWCCA 149. To address the applicant’s contention, it is only necessary to refer to four of them.

32. In Ali v R [2014] NSWCCA 45 (“Ali”), this Court (Leeming JA, Button J, RS Hulme AJ) upheld a complaint of “Muldrock error” (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39,) by the sentencing judge who had imposed a sentence of imprisonment for 10 years and 8 months with a non‑parole period of 8 years upon the applicant for an offence under s 61I. While working as a taxi driver, the offender twice indecently assaulted, then had penile/vaginal intercourse with an intoxicated young female passenger. He had not used a condom and ejaculated inside her. She was protesting and crying throughout the incident. The offender did not plead guilty. On resentence, this Court imposed a sentence of 8 years and 8 months with a non-parole period of 6 years and 6 months.

33. In Ali, the effect on the victim in that case was roughly comparable to that found by the sentencing judge in this case (Ali at [27] per Button J) and the offender was, like this applicant, an overseas national who was of previous good character (Ali at [28]), although there was no remorse on his part (Ali at [29]). Even allowing for the discount that has been afforded to this applicant by reason of his plea, the sentence that was imposed in Ali was still more severe than that imposed in this case.

34. In Nand v R [2014] NSWCCA 293 (“Nand”), this Court granted leave to appeal, but dismissed the appeal, against inter alia, the severity of two sentences imposed for offences under s 61I of the Crimes Act. For each of those offences the offender had received a sentence of 10 years and 6 months imprisonment with non‑parole periods of 7 years and 6 months and 7 years for the two offences. The total term imposed was 11 years with a non‑parole period of 7 years and 6 months. The offender had taken advantage of a woman who arrived at a railway station heavily intoxicated and passed out. The offender had placed his penis in her mouth and shortly afterwards placed his penis into her vagina. He used his mobile phone to record the offences. The sentences were imposed following a late plea for which the offender received a discount of 12.5% (Nand at [43]). Even allowing for the fact that the offender committed the offences while on parole (at [3]), and the differing level of discount, the sentence imposed in Nand was more severe than that imposed by the sentencing judge in this case.

35. In Rajendran v R [2014] NSWCCA 113 (“Rajendran”), a majority (Gleeson JA and Bellew J; Hamill J dissenting) dismissed an appeal against the sentence imposed for an offence under s 61I of imprisonment for 7 years and 6 months with a non‑parole period of 5 years. It was conceded that the sentence imposed was the subject of a “Muldrock error” but it was nevertheless concluded that no lesser sentence was warranted in law (Rajendran at [99] per Bellew J with whom Gleeson J agreed at [1]). The offender had pretended to be an agent for a lingerie brand and had lured the victim to meet him under the pretext that it was to interview her for prospective work as a model. They met at a bar where the victim consumed alcohol and became intoxicated. The offender invited her to his place of employment on the pretext of discussing modelling assignments. He attempted to kiss her but she refused. He then had penile/vaginal intercourse without her consent. The victim was crying throughout the incident. There was no discount as the offender had pleaded not guilty. The offender was found to be a person of otherwise good character and his prospects of rehabilitation were found to be favourable (Rajendran at [92]).

28. The offending in Rajendran was similar to the offending in this case, although there was no offence on a Form 1. The offender’s subjective case in Rajendran was also similar to that of the applicant in this matter, although this applicant has the benefit of a more generous finding of remorse and a larger discount on account of his plea. When allowance is made for that discount, it can be seen that the sentence imposed in Rajendran was only slightly less than that imposed upon the applicant.

29. More recently in Naveed v R [2019] NSWCCA 149 (“Naveed”), this Court dismissed an appeal against a sentence of 9 years with a non‑parole period of 6 years and 4 months for an offence under s 61I. The offender raped an intoxicated female. The offender was an Uber driver who had penile/vaginal intercourse with an intoxicated passenger. The offender was aged 41 with no criminal record. His prospects of rehabilitation were assessed to be reasonable. He had defended the matter and there was no positive finding of remorse. Nevertheless, the sentencing judge had made a finding of special circumstances. Even allowing for the discount proffered to this applicant on account of his plea, the sentence imposed in Naveed was more severe than that imposed upon him.

30. These four cases indicate that the decisions relied on by the applicant do not provide any support for his complaint of manifest excess. To the extent that they and the other cases relied on illustrate any “unifying principle” it is that with offences under s 61I committed by an offender upon a victim where there is no pre-existing relationship between them, then a custodial sentence of significant length within an otherwise reasonably wide range will almost invariably be imposed, even after allowance for the offender’s good character, remorse and reasonable prospects of rehabilitation. (The existence of a pre‑existing relationship between the offender and the victim will often raise different considerations in sentencing, although it should not be assumed that the sentence imposed in such a case will either be shorter or longer than those cases where there is no such relationship: see R v Gerard Cortese [2013] NSWCCA 148 at [38] to [58]).

31. In the end result in this case, bearing in mind both the maximum penalty, the standard non‑parole period, the sentencing judge’s assessment of the objective seriousness of the offence and the other undisputed findings noted above, I am not satisfied that the sentence imposed was “unreasonable” or “plainly unjust”.

32. The orders that I propose are:

(1)   Leave to appeal be granted.

(2)   The appeal be dismissed.

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Decision last updated: 14 February 2020