Rawat v The King

[2024] NSWCCA 64

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rawat v R [2024] NSWCCA 64

Hearing dates:

15 April 2024

Date of orders:

8 May 2024

Decision date:

08 May 2024

Before:

Wright J at [1];
Chen J at [2];
McNaughton J at [69]

Decision:

(1) Grant leave to the applicant to appeal against the sentence imposed on 22 August 2023.

(2) Dismiss the appeal against the sentence.

Catchwords:

CRIME – appeals – appeals against sentence – manifest excess – alleged error in the finding of the sentencing judge that the applicant had a lack of understanding of issues relating to consent – where applicant pleaded guilty to one count of sexual touching – where sentencing judge found that an ICO was technically available but would not sufficiently serve the purposes of sentencing, in particular, victim vindication, retribution and general deterrence – no error in factual finding established – manifest excess not established – leave to appeal granted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46

Aktar v The Queen [2015] NSWCCA 123; (2015) 251 A Crim R 376

Amante v R [2020] NSWCCA 34

Baines v R [2016] NSWCCA 132

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Geraghty v R [2023] NSWCCA 47

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Jalloh v R [2009] NSWCCA 295

Jiang v R [2010] NSWCCA 277

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Moodie v The Queen [2020] NSWCCA 160; (2020) 284 A Crim R 87

R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412

R v Qin [2008] NSWCCA 189

Salmond v R [2010] NSWCCA 141

Sharma v R [2010] NSWCCA 338

Smith v R [2020] NSWCCA 181; (2020) 93 MVR 345 Taitoko v R [2020] NSWCCA 43

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Wright v R [2019] NSWCCA 134

Category:

Principal judgment

Parties:

Rakesh Singh Rawat (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Norrie (Applicant)
V Garrity (Respondent)

Solicitors:
Sydney Criminal Law Specialists (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2022/00083469

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 589

Date of Decision:

22 August 2023

Before:

Haesler SC DCJ

File Number(s):

2022/00083469

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Rakesh Rawat, sought leave to appeal from the sentence imposed on him in respect of one count of sexual touching, contrary to s 61KC(a) of the Crimes Act 1900 (NSW) to which he pleaded guilty. The offence committed by the applicant involved him pulling down the underwear of the 20-year-old victim, whom he had met that evening, and rubbing his penis against her until he ejaculated.

On 22 August 2023, the applicant was sentenced by Haesler SC DCJ (the ‘sentencing judge’) to a term of imprisonment of 1 year and 10 months, with a non-parole period of 11 months. The sentence commenced on 22 August 2023 and will expire on 21 June 2025.

The applicant sought leave to appeal against his sentence on two grounds:

1. The sentencing judge made a factual error in finding that the applicant had a lack of understanding of issues relating to consent; and

2. The sentence was manifestly excessive.

The Court (Wright, Chen and McNaughton JJ) granting leave to appeal and dismissing the appeal against sentence, held:

1. It was open to the sentencing judge to make the finding that the applicant had a considerable lack of understanding of issues relating to consent. There is no inconsistency or tension between this finding and the sentence judge’s finding that the applicant was “unlikely to reoffend”: at [30]-[38] (Chen J); [70]-[73] (McNaughton J).

2. A comparison with the sentencing decisions referred to by Fagan J in Baines v R [2016] NSWCCA 132 for the offence of indecent assault under s 61L of the Crimes Act did not demonstrate that the sentence imposed by the sentencing judge was manifestly excessive. The matters referred to in Baines were not sufficiently similar to demonstrate manifest excess, or where there was a degree of similarity, tended to reinforce that the sentence imposed by the sentencing judge fit within the “range of possible sentences that could be imposed without error”: at [39]-[54] (Chen J).

3. The sentencing statistics from the Judicial Commission of NSW relating to the offence under s 61KC(a) of the Crimes Act did not provide the necessary granularity to support a conclusion that the sentencing exercise had miscarried: at [55]-[58] (Chen J).

JUDGMENT

1. WRIGHT J: I agree with the orders proposed by Chen J for the reasons that his Honour has given. I have also read the additional comments of McNaughton J and wish to express my specific agreement with those comments.

2. CHEN J: In the early hours of 20 March 2022, Rakesh Rawat (‘the applicant’) committed the offence of sexual touching, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). On 6 March 2023, the applicant, ultimately, pleaded guilty to doing so.

3. The matter was fixed for a sentence hearing on 22 August 2023 before Haesler SC DCJ (or ‘the sentencing judge’). The offence carries a maximum penalty of 5 years imprisonment. There is no standard non-parole period. His Honour sentenced the applicant to a term of imprisonment for 1 year and 10 months, with a non-parole period of 11 months: the non-parole period commenced on 22 August 2023 and is to expire on 21 July 2024. The sentence will expire on 21 June 2025.

4. The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against this sentence arguing, initially as the sole ground of appeal, that the sentence imposed was manifestly excessive. During the course of the appeal, the applicant sought, and was granted, leave to raise a further ground in aid of this overall contention – to the effect that the sentencing judge made a factual error in finding that the applicant had a lack of understanding of issues relating to consent.

5. In my view, leave to appeal should be granted, but the appeal dismissed because the applicant has failed to demonstrate that the sentence imposed was unreasonable or plainly unjust and thus manifestly excessive and, as part of that argument, or separately, that the sentencing judge made the factual error alleged.

Background

6. On 23 March 2022, the applicant was arrested and charged – initially with the offence of sexual intercourse without consent, contrary to s 61I of the Crimes Act.

7. The applicant’s trial was listed for hearing on 6 March 2023 in the District Court at Wollongong. On that day, following negotiations, the applicant pleaded guilty to the offence under s 61KC(a). That offence was a backup offence under s 166 of the Criminal Procedure Act 1986 (NSW), to which the applicant had earlier offered, when the matter was in the Local Court, to plead guilty.

The offending

8. The applicant was sentenced in accordance with a Statement of Agreed Facts (the ‘agreed facts’). What follows is drawn from those agreed facts and the sentencing judgment. The references to the sentencing judgment are referred to as J [1] etc.

9. On 19 March 2022, the victim, then aged 20, went with her cousin to licensed premises in Crown Street, Wollongong. After that venue closed, at around 3am, the victim and her cousin (‘the cousin’) went to a local McDonald’s where they stayed outside talking to friends. The cousin walked over to a friend, who was talking to the applicant. The applicant asked the cousin if she wanted to “come back to his house for drinks” (agreed facts at [3]). The cousin asked the victim if she wanted to go, and she agreed.

10. An Uber had been arranged by a friend of the applicant (‘the friend’), who had also been at the licensed premises, and the friend, the applicant, the cousin and the victim travelled in the Uber to the friend’s premises in Unanderra.

11. Whilst at the premises, the women were asked if they wanted drinks, but they declined. At one point, the victim saw her cousin being led into a bedroom by the friend. The victim went to walk to the kitchen, but the applicant grabbed her, “and they ended up on the lounge” (J [8]). The sentencing judge then described the events of, and surrounding, the offending as follows (at J [9]-[11]):

[9] Rawat started to kiss her on the lips, using his tongue. She did not want this to happen. Rawat placed his legs between the victim's legs. He used his legs to spread her legs apart. He was still trying to kiss her on the lips, but she was moving her face away. She said, "Can you just please stop?" She repeated this request. Rawat then used his left hand to push down on the victim's shoulder. He placed his right hand inside the split of her skirt. He put his right hand under her dress and pulled down her underwear. She was moving her legs. However, the offender was pulling them apart with his legs. He was too strong for her. She couldn't keep her legs closed. She felt overpowered.

[10] Rawat then used his right leg to pull her underwear off completely and his right hand to pull his own pants down. At this stage, the [victim] was in shock, she was intoxicated, she had little strength left, so she lay there and did not say anything. She waited for the offender to finish whatever he intended to do. The particulars of the intentional touching are then specified.

[11] While lying on top of the [victim] and rubbing his penis against her, the offender ejaculated. He then got up from the lounge. He was completely naked except for his shoes and his pants round his ankles. He did not say anything and got dressed. The [victim] pulled up her underwear and went to the ensuite. She later complained to her cousin. She was distressed, she was crying.

[12] The women then left the house and wandered the streets for a while. They talked about what had occurred and then messaged friends and family. Ultimately, the [victim] was picked up by her father. The police were called. Semen was found on her underwear.

The sentencing judgment

12. The sentencing judge accepted that the plea was entered “on the basis that [the applicant] was reckless regarding his knowledge that the [victim] was not consenting”, and proceeded on that basis: J [4].

13. In terms of objective seriousness, the sentencing judge noted that the victim “was grabbed and forcibly kissed” and that she had said, and repeated: “Can you please stop?”. The sentencing judge found that there “was nothing ambiguous in that statement. She was then subject to touching and kissing and the removal of her clothing”: J [17].

14. Whilst the sentencing judge accepted that the prosecution could not prove beyond reasonable doubt “that there was a deliberate [flouting] of her saying no”, rather that he was reckless (J [18]), the sentencing judge did not accept a submission, made on behalf of the applicant, that the conduct “was at the lowest end of the spectrum”. The submission was rejected because, whilst accepting the offending was “obviously not planned”, a “deliberate [flouting] of a persistent refusal does not put this matter in the lowest category of recklessness. Far from it. It is a more serious example than that”: J [19]. In assessing the objective seriousness, his Honour made the following further factual findings (at J [20] and [24]):

[20] I have to focus on the act itself. The offender was effectively naked. He had removed clothing from the lower part of the [victim’s] body. He then rubbed his penis against her until ejaculation. The facts did not reveal whether there was direct skin on skin contact, but nothing he did was wanted by her. It's not clear how long the event took, but it was intrusive and humiliating.

…

[24] I accept there was a degree of force used – and to ejaculate on someone without their consent, without their active participation, can be and would be here, humiliating. However, as Mr Karim notes; no threats were made, no physical harm was inflicted, there was no, and although the offender did use some force there was no significant violence or physical injury caused.

15. The sentencing judge accepted and found that “this was a serious example of its type, while obviously, there could be far less serious matters and far more serious matters”: J [26]. Earlier, the sentencing judge had noted that the parties agreed “that the offending was serious, so serious that a custodial sentence is warranted. The s 5 Crimes (Sentencing Procedure) Act 1999 threshold has been crossed”: J [21]; J [52].

16. The sentencing judge also had regard to the victim impact statement. His Honour had “no difficulty in accepting what [the victim] said” and emphasised that the statement “served the very practical purpose of drawing to the [applicant's], the Court's and the community's attention the personal damage and harm caused by crimes such as this”: J [29].

17. The sentencing judge accepted that the applicant was entitled to a 25% discount for his plea to the offence: J [33].

18. The sentencing judge treated the applicant “as a person of good character”: J [34].

19. The sentencing judge considered that the critical issues for determination were the length of the sentence and whether, if the sentence was less than 2 years, it could be served by way of intensive correction order: J [47].

20. In relation to the first issue, being the length of the sentence, the sentencing judge was satisfied that a sentence “of less than 2 years” could be reached: the sentencing judge “came to a figure prior to the utilitarian discount of about 2 years, 6 months which, with rounding down, gets to 1 year, 10 months”: J [53]. In relation to the second issue, being whether the sentence could be served by way of intensive correction order, the sentencing judge considered that it could not be: “the purposes of sentencing, in particular, victim vindication, retribution, general deterrence, in my view, would not be sufficiently served should this sentence be served subject to intensive correction”: J [60].

21. When considering “community safety”, the sentencing judge found that it was “clear” that the applicant, “while a person of otherwise good character, still has considerable lack of understanding of issues relating to consent” and that whilst unlikely to reoffend given “the consequences meted upon him, a fulltime custodial sentence will reinforce those considerations and cause him to dwell upon the crime he committed”: J [63]. His Honour considered that “while an ICO is technically available, having considered all relevant matters, a fulltime custodial sentence must be imposed”: J [65].

Legal principles: manifestly excessive sentences

22. The relevant principles that apply to a ground of appeal directed to what is argued to be a manifestly excessive sentence are well-established. They were recently summarised in Geraghty v R [2023] NSWCCA 47 at [94]-[95], as follows (citations omitted):

[94] As explained in Dinsdale v The Queen, manifest excess is a conclusion that “does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification”. The ultimate question, determinative of whether a sentence is manifestly excessive, is whether the sentence is “unreasonable or plainly unjust”, this being the language of the second category of error formulated in House v The King. In this category of appeal, the specific error is not shown in the reasons of the sentencing court, but it may be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance".

[95] Where an appeal raises a ground that the sentence imposed is manifestly excessive, the following principles are relevant. First, “judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Markarian at [27]. Secondly, as “sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’”, so that “there will be a range of possible sentences that could be imposed without error”. Thirdly, it is for the appellant to demonstrate that there is a disproportion manifest on the face of the sentence “so as to be indicative of substantive error”. Fourthly, an alleged error as to the weight to be given to particular factors does not enliven any “of the forms of error identified in House v [T]he King other than the last category”.

The applicant’s submissions

Introduction

23. The focus of the applicant’s written submissions was directed to an argument that the sentence imposed by Haesler SC DCJ was manifestly excessive, a conclusion that rested upon a comparative exercise involving two matters: first, the sentencing outcomes relating to the offence of indecent assault, under s 61L of the Crimes Act (now repealed), undertaken by Fagan J in Baines v R [2016] NSWCCA 132 (‘Baines’) (applicant’s submissions at [18]-[24]); and, secondly, the sentencing statistics from the Judicial Commission of NSW in connection with sentences for the offence under s 61KC(a) of the Crimes Act (applicant’s submissions at [25]).

24. As earlier noted, during the course of the hearing the applicant sought, and was granted, leave to add the following ground of appeal:

2. His Honour erred in finding the applicant had a lack of understanding of issues relating to consent.

25. The applicant confirmed that, other than the challenge covered by this further ground of appeal, no other findings of the sentencing judge were challenged.

26. The upshot of the applicant’s submissions was that the sentencing of the applicant miscarried: the applicant should have been sentenced to an intensive correction order and, so the argument went, this Court should find error and, upon resentencing the applicant, should order that the balance of the applicant’s sentence be served by way of intensive correction order (applicant’s submissions at [36]).

27. Given that ground 2 involves specific error, whereas ground 1 – which concerns whether the sentence is manifestly excessive – is not dependent upon identification of error of that kind, it is appropriate to deal first with the ground alleging patent error: R v Harris [2015] NSWCCA 81; (2015) 70 MVR 412 at [46]; Taitoko v R [2020] NSWCCA 43 at [64].

Ground 2: error in finding the applicant had a lack of understanding of issues relating to consent

28. The applicant challenged the finding made by the sentencing judge that the applicant had a lack of understanding of issues relating to consent. In this respect, the applicant specifically challenged the finding made by the sentencing judge at J [63], which was as follows:

Here, when I consider community safety as the paramount consideration, it is clear from all the material before me that the offender, while a person of otherwise good character, still has considerable lack of understanding of issues relating to consent. While it is unlikely Rawat will reoffend, because of the consequences meted upon him, a fulltime custodial sentence will reinforce those considerations and cause him to dwell upon the crime he committed.

29. The applicant’s oral submissions also made reference to a similar remark by the sentencing judge at J [41]. The substantive finding was, however, the one made at J [63] and it was that finding that the applicant sought to challenge by the further ground of appeal (Tcpt, 15 April 2024, p 6(4)). The applicant’s submission was that this finding was a critical one that significantly informed the sentencing judge’s assessment of why a penalty other than full-time imprisonment was inappropriate. Aside from challenging the finding, the applicant’s submissions did not develop why that finding was said to be not open to the sentencing judge.

29. In my view, it was open to the sentencing judge to make the finding he did, and he was not in error in doing so (see Amante v R [2020] NSWCCA 34 at [8] and [55]-[56]), given the following.

30. First, the circumstances of the offending included the following unchallenged findings based, it should be emphasised, upon the agreed facts (at J [8]-[9]): that the applicant “grabbed” the victim as she walked towards the kitchen; the applicant started to kiss the victim, but the victim “did not want this to happen”; the applicant placed his legs between the victim’s legs, then used “his legs to spread her legs apart”; the applicant was still trying to kiss the victim on the lips, “but she was moving her face away”; at this point, the victim said: “Can you just please stop?” and she “repeated this request”. It was these findings (which were, in substance, summarised in J [17]), in particular, that led his Honour to make the finding at J [19]: that the victim repeated her request to “Please stop” meant that the applicant’s conduct amounted to, the sentencing judge found, “a deliberate [flouting] of a persistent refusal”.

31. Secondly, the sentencing judge focused “on the act itself”, making the unchallenged finding that “nothing [the applicant] did was wanted by her”: J [20].

32. Thirdly, as the sentencing judge noted, it was conceded on behalf of the applicant that the applicant’s position was that “he simply failed to consider whether or not the [victim] was consenting and just went ahead with the act of sexual touching even though the risk the [victim] was not consenting would have been obvious to someone with the accused's mental capacity if he has turned his mind to it”: J [5]. This concession is, on its own, destructive of the applicant’s submission, in my view, as it amply supports the finding made.

33. Fourthly, in the Sentencing Assessment Report dated 23 May 2023, it is noted that the applicant “maintained that he believed the intimate contact he had with the victim was consensual”. Given that report was dated 23 May 2023, this reporting by the applicant also lends support to the finding made by the sentencing judge.

34. It should be emphasised that the applicant’s submissions did not identify any evidence that might be taken to undercut the conclusion of the sentencing judge, nor was it suggested that the sentencing judge overlooked some evidence that might tend to support a different finding than the one made.

35. The applicant next sought to argue that the error was evident because there was a “degree of inconsistency” and “tension” in the sentencing judge making the challenged finding, having regard to the finding made by the sentencing judge that the applicant was “unlikely to reoffend”.

36. I do not accept this submission. In my view, there is no inconsistency, nor tension, as the applicant argued. The fact that the applicant “had a lack of understanding of issues relating to consent” does not mean that the applicant is likely to reoffend, as the applicant’s submission assumed. Further, the explanation for why the sentencing judge concluded the applicant was unlikely to reoffend was based upon “the consequences meted upon him” and because a “fulltime custodial sentence will reinforce those considerations and cause him to dwell upon the crime he committed”: J [63], J [50].

37. For those reasons, I would dismiss this ground of appeal.

Ground 1: manifest excess

Comparative sentencing involving offences under s 61L of the Crimes Act

39. The applicant’s principal argument was, in effect, that when regard was had to the analysis of sentencing outcomes in cases under s 61L of the Crimes Act undertaken by Fagan J in Baines at [109]-[126], then it was apparent that the sentence imposed by Haesler SC DCJ was manifestly excessive, albeit that the submissions did not extend to explaining how, or why, this conclusion should be reached. The argument was not developed during oral submissions.

40. In approaching the assessment of whether the sentencing outcome was manifestly excessive in the way argued, three matters warrant emphasis. First, whilst it may be accepted that consistency of sentencing is promoted by the proper and careful use of comparative sentencing, what is sought to be derived is consistency in the application of legal principle, rather than mathematical equivalence: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] (‘Hili’). To this end, it has been said that the range of sentences that have been fixed does not fix “the boundaries within which future judges must, or even ought, to sentence”: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304]; Hili at [54]. Secondly, to the extent that reliance is placed upon sentencing outcomes for the same, or similar, offences, it remains important to pay careful attention to the degree of similarity between the cases relied upon and the sentence that is the subject of review: Moodie v The Queen [2020] NSWCCA 160; (2020) 284 A Crim R 87 at [89] (‘Moodie’). Thirdly, even if there be “close alignment” in the circumstances to comparative cases yielding lesser sentences, that “is not determinative of manifest excess”: Wright v R [2019] NSWCCA 134 at [52]. Nor is a conclusion of manifest excess “justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58] (‘Wong’). That this is so reflects (at least) a number of the principles earlier referred to, including the principle that as sentencing “is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’” (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]), so that “there will be a range of possible sentences that could be imposed without error”: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].

41. The sentencing decisions referred to in Baines were: R v Qin [2008] NSWCCA 189 (‘Qin’); Jalloh v R [2009] NSWCCA 295; Salmond v R [2010] NSWCCA 141 (‘Salmond’); Jiang v R [2010] NSWCCA 277 (‘Jiang’); Sharma v R [2010] NSWCCA 338 (‘Sharma’); and Aktar v The Queen [2015] NSWCCA 123; (2015) 251 A Crim R 376 (‘Aktar’).

42. It may be accepted, in relation to like cases, that sentences “must be reasonably consistent”: Hili at [49] and [77]. Here, however, aside from setting out the analysis undertaken by Fagan J in Baines at [109]-[126], no attempt was made to explain why all, or even some, of these decisions were comparable or sufficiently like the present matter. Further, no submissions were made as to what, if any, yardstick or other guidance could be drawn from all, or even some, of these decisions as a step towards demonstrating that the sentence in the present case was manifestly excessive.

43. There is, to my mind, little to be gained by comparing the sentence imposed (and the reasons for it) in the six matters referred to Baines dealing with sentencing for offences under s 61L of the Crimes Act with the sentence imposed by the sentencing judge. That is for a range of reasons, including because the nature of the conduct is of a different kind. For example, in Qin, Salmond and Jiang, each matter involved a massage therapist, during the course of a massage therapy consultation, touching (or sucking) the nipples of the victim (the indecent assault in Jiang) or touching or brushing the genital area or anus of the victim (the indecent assault in Qin and Salmond). It is also because the conduct was the subject of a specific finding, reflecting the objective seriousness of the offending determined by the sentencing judge in each of those cases, that was different to the finding made in the present one.

44. Further, to the extent that there was a degree of similarity between some of the decisions and the present, those decisions tended to reinforce that the sentence imposed in the present case does not sit inconsistently with those matters. Two of the decisions are of this kind: Sharma and Aktar.

45. The decision in Sharma involved an offender pleading guilty, on the day on which his trial was to commence, to an offence of indecent assault (under s 61L of the Crimes Act) and he requested that the Court take into account on a Form 1 another count of indecent assault against the same victim: at [1].

46. The offending involved the offender, who was a bus driver, indecently assaulting the victim when she was alone on the bus he was driving. The offender put his hand under the victim’s shirt and bra. The victim told him to stop and pushed him away. After this, the offender “took out his penis and masturbated until he ejaculated”: at [4]. The further offending was described in the following terms (at [5]):

The [offender] then untied the drawstring to the victim’s pants and put his hand inside her pants and her underpants.  He touched her vaginal area until she grabbed his hand and forced it out of her pants and underpants.  He put his hand back inside her pants and she again grabbed his arm and moved his hand out of her pants.  He pulled her pants down slightly, put his face against her vaginal area and kissed her there a number of times.  She told him to stop and that she did not want to do that.  He told her that it was all right, that he loved her and she loved him.  She asked him when he had to go back to work and he said “soon”.  He got up, kissed her on the cheek and went to the driver’s seat.  He asked her where she wanted to go and she said to Blacktown station.  The [offender] then drove her to the station.  She subsequently complained and reported the incident. 

47. The sentencing judge concluded that the objective features in relation to the offence put it at a “high level of seriousness” (at [10]) and, on appeal, McClellan CJ at CL remarked that “there can be no doubt that this was a serious offence”: at [11]. The appeal judgment does not set out the subjective features considered by the sentencing judge in any significant detail.

48. The sentencing judge allowed a discount of 15% for the offender’s plea of guilty and also made a finding of special circumstances, resulting in the non-parole period being equivalent to approximately 60% of the sentence: at [2]. The offender was sentenced to a 2-year non-parole period, and a balance of term of 1 year, 4 months and 24 days: at [2].

49. The decision in Aktar involved sentencing the offender, who had entered pleas of guilty, for two counts of indecent assault, contrary to s 61L of the Crimes Act.

50. The offending involved the offender attending upon the victim’s home. They were related. The offender indicated a sexual interest in the victim, an overture that was rebuffed by the victim. When asked to leave by the victim, the offender refused. He picked up and carried the victim to a sofa and lay on top of her, pinning her down with the weight of his body. The offender, despite repeated requests to leave, “began kissing and licking the [victim], and touching her breasts”: at [10]. When the victim endeavoured to run away, the offender took hold of her forcefully, carrying her upstairs towards a bedroom. The offender threw the victim onto her bed and got on top of her. He removed the victim’s upper clothing. The offender forced the victim’s hand “onto his exposed erect penis” and moved “his penis towards the [victim’s] mouth. The [offender] caused his penis to move against the [victim’s] exposed chest”: at [13]. This conduct was the first count.

51. The victim sought to resist and stand up, but the offender pushed the victim back onto the bed and “began to again kiss and lick her upper body”: at [14]. This conduct was the second count. Soon after this, the offender left.

52. The sentencing judge found the offending to be “at the higher end” for the first count, and found the second count to be “at the lower end”, but otherwise that the offences were “serious”: at [69] and [71].

53. The offender, who pleaded guilty, had a discount of 10% on the sentences that would otherwise have been imposed. In relation to the first count (and taking into account offending that was before the Court on a Form 1), the offender was sentenced to 1 year and 9 months imprisonment, with a non-parole period of 9 months: at [5]. In relation to the second count, the offender was sentenced to 1 year and 1 month imprisonment, with a non-parole period of 6 months: at [5]. There was some accumulation. The overall sentence was imprisonment for 2 years and 3 months, with a non-parole period of 1 year and 3 months specified: at [6].

54. Although, as I have said, there is some degree of similarity between these two cases and the applicant’s case, ultimately, I consider that they provide no support for a finding, when the sentences in those cases are compared to the one imposed upon the applicant, that it should be inferred that the applicant’s sentence is based upon a latent error. In my view, and recognising the limited sample size, to the extent any inference could legitimately be drawn, it is that the sentence imposed by the sentencing judge was consistent with the sentence imposed in those cases.

Sentencing statistics

55. The applicant also relied upon the sentencing statistics from the Judicial Commission of NSW relating to the offence under s 61KC(a) of the Crimes Act, and a copy of those statistics were attached to the applicant’s written submissions (applicant’s submissions at [25]).

56. The written submissions did not, however, explain why these statistics had the result contended for. During oral submissions it was suggested, without elaboration, that the use of these statistics, although limited, nevertheless supported the applicant’s overall contention that the sentence imposed was unreasonable or plainly unjust.

57. I do not accept the applicant’s submission. In my view, reliance upon these statistics is not capable of establishing a benchmark with which to measure consistency for sentencing purposes. That is because, as was explained in Wong at [59], the “production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were”. It is for that reason that the “raw data – the actual sentences imposed – is rarely sufficient to provide any meaningful guidance” (Smith v R [2020] NSWCCA 181; (2020) 93 MVR 345 at [78]) because ordinarily it does not supply “the granularity necessary for critical appraisal of the closeness of cases presented as ‘like’ or ‘similar’ or ‘comparable’”: Moodie at [88].

58. Thus, as the Crown submitted, the fact that, according to the statistics, 45.2% of offenders received an intensive correction order and 33.3% were sentenced to a period of full-time imprisonment for offences of this kind does not, in and of itself and without further information about why the offenders were sentenced in that way, support a conclusion that the sentencing exercise in the present case, in some way, miscarried.

Other considerations

59. The applicant also argued, albeit that the argument in these terms was not contained within the written submissions filed, that sentencing the applicant to anything other than an intensive correction order was simply “not open”. The argument was that, taking all the matters into account that the sentencing judge did, full-time custody was “not an option”, with the consequence that the sentence was unjust or unreasonable.

60. I do not accept this submission for the following reasons.

61. First, when all is said and done, this submission was no more than an invitation for this Court, absent identification of error, to reach a different view to the sentencing judge. That invitation must be rejected. The sentencing discretion was vested in the sentencing judge, not this Court, and there is no principled basis upon which this Court can intervene merely because, if it were sentencing the applicant, it might have arrived at a different view than the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

62. Secondly, although the applicant emphasised a number of matters that preceded the particularised sexual touching and noted that there was “no particularisation of the part of the victim which came into contact with the [applicant’s] penis” and “no particularisation of the period of time over which the sexual touching occurred” (applicant’s submissions at [29]-[31]), those matters are, on their own, or in combination with the other matters raised by the applicant, of no moment. That is particularly where the finding as to the objective seriousness of the offending was not challenged and, furthermore, these matters were, in any event, expressly taken into account by the sentencing judge: see J [20] (set out at [14], above).

63. Thirdly, to the extent that the applicant submitted that a number of features of the applicant’s offending meant that it fell towards the lower end of objective seriousness (applicant’s submissions at [33]), I would simply observe that the sentencing judge did not make that finding. The finding made – a finding that I emphasise was not challenged on appeal – was that it was a “serious example of its type” and, in addition, the sentencing judge had also noted that the parties had agreed “that the offending was serious, so serious that a custodial sentence is warranted”: see [14]-[15], above.

64. Further, I do not accept the premise of at least aspects of this submission – notably, in connection with the argument that there was “no degree of force”, “no degree of humiliation” and that there was a lack of age gap between the applicant and the victim. As to these matters, I would observe the following:

1. In relation to the submission that there was “no degree of force”, that is not so, as the agreed facts set out in the sentencing judgment at [9]-[11] demonstrate. Further, the sentencing judge found there was “a degree of force used”, and later noted that whilst the applicant “did use some force there was no significant violence or physical injury caused”: J [24]. The sentencing judge also found that the victim “was grabbed and forcibly kissed”: J [17].

2. In relation to the submission that there was “no degree of humiliation”, again that is plainly not so. The agreed facts relating to the offending were set out in the sentencing judgment at [9]-[11], following which the sentencing judge made two findings that these events were humiliating: the first finding was that “nothing [the applicant] did was wanted by her… it was intrusive and humiliating” (J [20]) and, later, the second finding being that there “was a degree of force used – and to ejaculate on someone without their consent, without their active participation, can be and would be here, humiliating”: J [24].

3. In relation to the submission that there was “a lack of age gap between the [applicant] and the victim”, again, that is simply not so: as the sentencing judge noted, the applicant acknowledged “the age gap between the offender and the [victim] was about 15 years”: J [25].

65. Ultimately, when these matters were drawn to the attention of the applicant’s counsel during the course of the hearing, the submissions were appropriately no longer pressed.

66. Fourthly, to the extent that the applicant’s submissions sought to emphasise a range of matters that essentially went to the applicant’s subjective case (eight were set out in the applicant’s submissions at [34]), each of them was specifically considered by the sentencing judge: the applicant was accepted to be a “first offender” (J [34]); the applicant was “a person of good character” (J [34]); rehabilitation to an extent had been demonstrated (J [49] and [56]); the applicant was unlikely to reoffend (J [50] and [63]); the applicant had expressed remorse (J [48]); there was an offer to plead guilty to the lesser offence in the Local Court (J [31]-[33]); and the applicant had an underlying depressive condition (J [49]). Indeed, the applicant did not submit that each of the matters were not considered by the sentencing judge.

65. The sentencing judgment, which was delivered ex tempore, was thorough and comprehensive, in my view. The sentencing judge correctly directed himself to, and applied, the relevant statutory provisions and had regard to the maximum penalty, the objective seriousness of the offending, the fact there was a plea of guilty as well as the various subjective matters advanced on behalf of the applicant. Given the arguments raised by the applicant, it follows that whether as a matter of impression or having assessed the sentence within the sentencing framework identified, the sentence fixed was not outside the range reasonably available to the sentencing judge. Nor was error otherwise to be inferred from the result, so that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”. The sentence imposed was not plainly unjust or unreasonable or manifestly excessive.

Orders

68. For the above reasons, I propose the following orders:

1. Grant leave to the applicant to appeal against the sentence imposed on 22 August 2023.

2. Dismiss the appeal against the sentence.

69. McNAUGHTON J: I agree with the reasons of Chen J and the orders he proposes. I just wish to add the following brief further comments in relation to Ground 2.

70. The impugned finding of the sentencing judge was made at [63] of the remarks on sentence in the context of his Honour’s consideration of the appropriateness of an Intensive Correction Order (where the paramount consideration is community safety: Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(1)) where his Honour stated:

“Here, when I consider community safety as the paramount consideration, it is clear from all the material before me that the [applicant], while a person of otherwise good character, still has considerable lack of understanding of issues relating to consent. While it is unlikely [the applicant] will reoffend, because of the consequences meted upon him, a fulltime custodial sentence will reinforce those considerations and cause him to dwell upon the crime he committed.”

(Emphasis added.)

71. His Honour had earlier made another observation in relation to the applicant’s limited understanding in relation to consent. At [41], under the heading “The case for the offender”, his Honour stated (referring to a Corrective Services Structured Case Note Consultation for Sex Offender – Sentence Assessment Report):

“Under the heading ‘Factors relevant to management’, Mr Attai reports there is no significant issues in his personal life, but he told the officer that he was told by his associate that the girls were available to ‘party on’. When this was clarified with [the applicant], he said the comment was understood to mean that he believed the girls to be available for sex. He told the officer that the offence occurred in the context of ‘consuming too much alcohol’ and his judgment was impaired. It appears that he has limited understanding when it comes to questions of consent”.

(Emphasis added.)

72. As observed by Chen J at [34] the material before the sentencing judge also included a Sentencing Assessment Report dated 23 May 2023, in which it was recorded that the applicant “maintained that he believed the intimate contact he had with the victim was consensual”.

73. In my view, the finding made by the sentencing judge at [63], which focused on the applicant’s understanding of consent at the time of sentence, was clearly open to his Honour, and amply supported by the material before him.

**********

Decision last updated: 08 May 2024