Suleman v The State of Western Australia
[2022] WASCA 19
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SULEMAN -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 19
CORAM: BUSS P
MAZZA JA
HEARD: 21 JANUARY 2022
DELIVERED : 18 FEBRUARY 2022
FILE NO/S: CACR 191 of 2021
BETWEEN: SYED AHMED SULEMAN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BURROWS DCJ
File Number : IND 69 of 2020
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant convicted of three counts of sexual penetration without consent - Appellant sentenced to a total effective sentence of 4 years 10 months' immediate imprisonment - Whether total effective sentence infringed the first limb of the totality principle
Legislation:
Criminal Code (WA), s 325
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Kabambi v The State of Western Australia [2019] WASCA 44
Musgrave v The State of Western Australia [2021] WASCA 67
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence.
The appellant was charged on indictment in the District Court with four offences of a sexual nature, all of which were said to have occurred on 26 July 2019 at a unit in Queens Park. The alleged victim was a woman, then aged 18 years, who we will refer to as N.
Counts 1, 2 and 3 alleged that the appellant sexually penetrated N without her consent by penetrating her vagina with his fingers, contrary to s 325 of the Criminal Code (WA) (the Code). Count 4 alleged that the appellant unlawfully and indecently assaulted N by touching her breasts.
On 16 June 2021, after a two‑day trial, the appellant was found guilty of counts 1, 2 and 3 and not guilty of count 4.
On 18 August 2021, Burrows DCJ sentenced the appellant to terms of immediate imprisonment as follows:
Count 1 - 2 years 5 months
Count 2 - 2 years 3 months
Count 3 - 2 years 7 months
Her Honour ordered that the sentences on counts 2 and 3 be served cumulatively and that the sentence on count 1 be served concurrently with the sentence on count 3. Thus, the total effective sentence imposed upon the appellant was 4 years 10 months' immediate imprisonment. The appellant was made eligible for parole and the sentences were ordered to commence on 18 August 2021.
The appellant, who is self‑represented, does not challenge any of the individual sentences that were imposed. His sole ground of appeal alleges, in substance, that the total effective sentence of 4 years 10 months' immediate imprisonment infringed the first limb of the totality principle.
For the reasons set out below, the proposed ground of appeal has no reasonable prospect of succeeding and the appeal should be dismissed.
The facts
There is no challenge to her Honour's findings as to the facts of the offending. On 26 July 2019, the appellant, who was then aged 26 years, was employed by a company which promoted a mobile payment terminal system for taxi drivers. He was employed to drive the young women who were promoting and selling the system. N had recently commenced employment in this role.
At about 8.00 am, N commenced her shift with the appellant. Another young woman who was supposed to join the shift did not turn up. The appellant drove N to Perth Airport where, over the course of a few hours, she sold some of the systems. The appellant then drove N to other locations. At one point, the appellant collected, from a friend, a key to a unit in Queens Park. The appellant bought N lunch and drove her to the unit, which he knew was vacant, for a lunch break.
At the unit, after returning from smoking a cigarette outside, the appellant sat next to N on a couch. She felt uncomfortable and tried to move away. The appellant persisted to lean on her. N began to feel scared. The appellant squeezed N's thigh, undid the buttons and zip on her pants, and placed his hand down her pants and underneath her underwear. He then rubbed N's vaginal area, prompting her to say, 'Don't'. The appellant took his hand away, took off his rings, and then digitally penetrated N's vagina by rubbing between her labia (count 1).
N attempted to wriggle away and told the appellant to stop. The appellant moved his hand under N's clothing towards her bra and stomach, grabbing the sides of her stomach and pushing her bellybutton in. Again, he put his hand down her pants and rubbed her vagina, touching her inner labia (count 2). N again told the appellant, 'Don't'.
The appellant then pulled N down on the couch so that she lay on one shoulder. The appellant partially straddled her and placed a finger or fingers inside her vagina, moving the finger or fingers in and out (count 3). During the conduct, which lasted for less than a minute, N told him, 'Don't. Just stop'. The appellant eventually stopped and got off N.
The appellant left the room briefly. On his return, he attempted to grab N's legs, but she pulled herself into a protective ball. The appellant and N returned to the vehicle, eventually returning to the depot at the end of N's shift at about 3.00 pm. N collected her car and drove home.
On the following Monday, 29 July 2019, N completed another shift with the appellant. She did so because she did not want to leave another young woman in the appellant's presence unaccompanied.
The appellant's antecedents
The appellant was 28 years of age when he was sentenced. He was born in Pakistan, where his parents still live, and he has 10 brothers and sisters. The appellant had a good upbringing and his family in Pakistan remains a source of support.
The appellant has been married for five years and has a 15‑month‑old daughter from that relationship. He also has a 5‑year-old daughter from a previous relationship who lives with him and his wife. This child was born with a cleft palate and has a number of medical issues. She is required to attend specialist appointments twice a month at Perth Children's Hospital.
The appellant came to Australia in 2013 and has completed an English language course, as well as certificates in business and work health and safety, and a graduate diploma in work health and safety.
Since arriving in Australia, the appellant has been in consistent employment. He worked as a security guard in the emergency department of Joondalup Hospital and for various hospitality venues. He also worked at a car wash at the Perth Convention Centre and then as a taxi driver. He has no physical or mental health issues and no issues relating to substance abuse.
Apart from some traffic‑related offending, the appellant has no prior convictions. Her Honour said he came before the court as a person of prior good character.
The appellant was in the process of obtaining permanent residency when he was charged with the offences. As a result of his convictions and sentences, he is liable to be deported under the current migration regime.
The sentencing remarks
As it is not alleged that the sentencing judge made any express error, it is unnecessary to set out in detail the sentencing remarks.
Her Honour was satisfied, having seen N give evidence, that the offending has had, and continues to have, a significant adverse impact upon her.
Her Honour noted the age disparity between the appellant and N. She observed that the appellant was employed to drive N and was her only means of transport. Her Honour also observed that the appellant took her to the unit knowing that it would be empty. She described the offending as persistent, involving three separate acts of sexual penetration. N repeatedly asked the appellant to stop and tried physically to move away from him. He was physically much larger than her and he used a degree of physical force to overcome her resistance when he committed count 3.
Her Honour found that the appellant was not remorseful and did not have insight into his offending behaviour.
Her Honour acknowledged the appellant's prior good character, his solid work history since arriving in Australia and that he has a supportive family. Her Honour acknowledged the appellant's personal circumstances, including that he and his wife care for their 15‑month‑old daughter and the appellant's 5‑year‑old daughter referred to in [16] above.
Her Honour described the offences as serious and stated that both general and personal deterrence were relevant sentencing considerations. Her Honour expressly referred to the totality principle.
Her Honour acknowledged that the appellant was liable to deportation, but said that this matter was not mitigatory.
The appellant's submissions
The appellant's written submissions refer to this court's decision in Musgrave v The State of Western Australia[1] and, in particular, to Pritchard JA's analysis of the comparable cases. The appellant submits that the total effective sentence imposed upon him was beyond the range of sentences customarily imposed.
[1] Musgrave v The State of Western Australia [2021] WASCA 67.
In his oral submissions, the appellant emphasised his need to provide care to his wife and daughters, most particularly his 5‑year‑old child.
Appellate legal principles
The legal principles applicable to the totality principle are well established. They were recently restated by this court in Kabambi v The State of Western Australia:[2]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
…
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[2] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Disposition
Her Honour's encapsulation of the serious aspects of the offending and the impact on the victim do not require repetition. The offending involved a high degree of criminality. The appellant did not have youth on his side or the mitigation of pleas of guilty.
As her Honour acknowledged, there is some mitigation to be found in the appellant's prior good character, his consistent history of employment and the support given to him by his family. We do not doubt that his incarceration will cause hardship to his wife and children. His wife will, herself, have to care for the appellant's daughters. The appellant's 5‑year‑old child requires regular medical care. However, the degree of hardship to the appellant's family is not exceptional.
We have had regard to the analysis of comparable cases undertaken by both Buss P and Pritchard JA in Musgrave, some of which, unlike this case, involved a plea or pleas of guilty. It is unnecessary to set out the facts and circumstances of Musgrave or the cases therein. It is important to bear in mind that there is no tariff for sexual offences, having regard to the extremely variable circumstances of offending and offenders. Further, an examination of the outcomes in comparable cases is to ensure broad consistency between the case at hand and past cases. Bearing in mind the different facts and circumstances of the cases examined in Musgrave, in our opinion the total effective sentence in the present case was broadly consistent with the range of sentences customarily imposed.
Having regard to all of the relevant facts and circumstances and all of the relevant sentencing principles, in our opinion, it is not reasonably arguable that the total effective sentence of 4 years 10 months' immediate imprisonment infringed the first limb of the totality principle. Leave to appeal must be refused.
Orders
The orders we would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
18 FEBRUARY 2022
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