Aliabadi v R

1. [1]

   HOEBEN CJ at CL: I agree with the judgment of Adamson J and the order which she proposes.

2. [2]

   DAVIES J: I agree with Adamson J for the reasons she gives.

3. [3]

   ADAMSON J: Mohammad Aliabadi (the applicant) applies for leave to appeal against the sentence imposed on him by Frearson SC ADCJ on 29 October 2019 following his conviction after trial by jury of two counts of indecent assault (counts 1 and 2) and one count of sexual intercourse without consent (count 3). His Honour imposed an aggregate sentence of 4 years and 3 months’ imprisonment commencing on 21 July 2019 and expiring on 20 October 2023 with a non-parole period of 2 years and 10 months’ imprisonment commencing on 21 July 2019 and expiring on 20 May 2022.

4. [4]

   The applicant seeks leave to appeal on the following grounds:

   1. (1)

      His Honour failed to correctly assess the objective gravity regarding count 3;

   2. (2)

      His Honour failed to correctly assess the objective gravity regarding counts 1 and 2;

   3. (3)

      His Honour failed to give reasons for the assessment of objective gravity for count 3.

5. [5]

   Before setting out the factual findings, the sentencing judge (who was also the trial judge) said:

6. [6]

   His Honour then proceeded to find the facts. The inference is available that his Honour did so by reference to the transcript of the complainant’s evidence in chief at the trial, as the wording used in the findings largely accorded with the complainant’s own words.

7. [7]

   His Honour found that the applicant and the complainant met through a dating web-site, “Plenty of Fish”. They exchanged several messages before meeting for a “date” on 3 December 2017. The applicant went to the complainant’s house, which she shared with a housemate, Jason. They went out during the day and visited local sites and the complainant’s horse, which was pastured in the area. Later they returned to the complainant’s house where she changed into more comfortable clothing and sat on the couch.

8. [8]

   The applicant does not challenge the correctness of his Honour’s findings with respect to count 1, which were as follows:

9. [9]

   The applicant does not challenge the correctness of his Honour’s findings with respect to count 2, which were as follows:

10. [10]

    His Honour made the following findings with respect to count 3:

11. [11]

    Although the applicant did not contend that any of these findings was incorrect, Mr Karim, who appeared on his behalf, contended that the Crown’s submissions were erroneous and that his Honour, in referring to the Crown’s representation of the facts in its submissions as accurate, must be taken to have been in error in his findings of fact. I reject this submission. His Honour’s reasons set out the findings of fact relevant to sentencing. A general statement that the Crown’s submissions as to the facts were accurate does not amount to an incorporation by reference of facts which were not expressly incorporated into the remarks on sentence. In assessing the sentence and the reasons given for it, this Court is confined to the remarks on sentence.

12. [12]

    His Honour’s reasons relating to the assessment of objective seriousness were as follows:

13. [13]

    His Honour’s findings reflected an acceptance of the following submission made by Mr Keller, who appeared for the applicant both at the trial and at the sentence hearing:

14. [14]

    Mr Karim submitted that the objective seriousness of count 3, which involved digital penetration, was at the lower end of the scale and that his Honour was in error in determining that it was just below the mid-range.

15. [15]

    A challenge to an assessment of objective seriousness for the purposes of sentencing is reviewable only by reference to the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. The oft-cited passage from Simpson J’s judgment in Mulato v R [2006] NSWCCA 282 at [46] is instructive. Her Honour said:

16. [16]

    The restraint which applies to this Court is even greater following a trial by jury: Baines v R [2016] NSWCCA 132 at [15] (Basten JA). The sentencing judge is obliged to find the facts in accordance with the evidence in the trial and consistently with the jury’s verdicts: R v Isaacs (1997) 41 NSWLR 374 at 380D.

17. [17]

    In these circumstances, the applicant’s submission in support of ground 1 must be understood as amounting to a submission that it was not open to the sentencing judge to assess the objective seriousness of count 3 as “just below mid-range” because it involved digital penetration and not penile penetration. If the submission is not understood in that way, the alleged error would not amount to a House v The King error.

18. [18]

    I do not regard this submission as being open to the applicant since his counsel at the proceedings on sentence contended that the offence in count 3 fell just below the mid-range of objective seriousness. An appeal is not an opportunity to reformulate a submission that could have been put below or, as here, to depart from a submission that was put below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL agreeing). For these reasons, I would refuse leave with respect to ground 1.

19. [19]

    His Honour’s assessment of the objective seriousness of counts 1 and 2 accorded with the submissions made by the applicant’s trial counsel. In these circumstances, leave to appeal ought be refused for the same reasons as with respect to ground 1.

20. [20]

    His Honour’s reasons for the assessment of the objective seriousness of each of the counts are set out above. They follow from the findings of fact made by his Honour. I discern no inadequacy in the reasons. While the reasons were brief and delivered ex tempore, they were sufficient to expose the reasons for the assessment. I am not persuaded that leave ought be granted for this ground.

Proposed order

1. [21]

   For the reasons given above, I propose the following order:

   1. (1)

      Leave to appeal refused.