Siddiqui v R

1. [1]

   McHUGH JA: I have had the very considerable advantage of reading the draft reasons of R A Hulme AJ.

2. [2]

   As to what his Honour describes as the applicant’s overarching assertion that the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence, I have reviewed the record of the trial in order to form my own assessment of the evidence. Having done so, I am entirely satisfied that “upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” of each count: M v The Queen (1994) 181 CLR 487 at [493]; [1994] HCA 63.

3. [3]

   I otherwise agree with the orders his Honour proposes and his reasons for them.

4. [4]

   SWEENEY J: I have had the benefit of reading in draft the judgment of R A Hulme AJ. I am grateful to his Honour for his comprehensive account of the evidence in the trial and consideration of the issues in the appeal.

5. [5]

   Having conducted my own independent assessment of the evidence, I am of the view that the jury’s verdicts were open to them and there is no doubt about the applicant’s guilt. Otherwise, I agree with his Honour’s reasons and the orders he proposed.

6. [6]

   R A HULME AJ: Haseeb Siddiqui (the applicant) has applied for an extension of time to seek leave to appeal against his conviction and sentence for three sex offences.

7. [7]

   After a jury returned verdicts of guilty on 7 March 2023 in the District Court at Penrith, the applicant was sentenced by his Honour Judge Baker SC on 5 May 2023 to an aggregate term of imprisonment for 7 years with a non-parole period of 5 years, 3 months. The offences and the individual sentences his Honour indicated he would have otherwise imposed, were as follows:

Leave to appeal against conviction

1. [8]

   Leave to appeal is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) as the proposed grounds of appeal against conviction involve questions of fact alone or mixed questions of law and fact. Leave is also required pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) as the notice of appeal was filed beyond the expiration of the applicable filing period. [1] The applicant provided reasons for the late filing of his notice of appeal and such reasons included a lack of legal assistance and difficulty representing himself. [2] However, as the proposed appeal against conviction lacks merit, I propose that leave be refused.

Grounds of Appeal

1. [9]

   The applicant was represented at trial and on sentencing but appeared for himself in the proceedings in this Court. He filed 14 grounds of appeal against conviction and 8 grounds of appeal against sentence, providing submissions in support of each. As there was overlap between some grounds, the Crown usefully organised them into logical groups. It is proposed to discuss them under that re-arrangement. The applicant’s contentions include broad claims that the convictions are unreasonable and the aggregate sentence is manifestly excessive. For that reason, it is necessary to review the evidence in some detail.

Overview

1. [10]

   The Crown provided the following outline of the competing cases at the trial: [3]

2. [11]

   Given the applicant’s case at trial was that the sexual activity which occurred was consensual, the following evidentiary review will be directed towards the issue of consent.

The evidence in detail

1. [12]

   The complainant was aged 16 and lived with his mother, stepfather and siblings at Kingswood. He had a job at a restaurant in Penrith and on 8 July 2021 he worked a shift that ended at 9pm. He would usually be picked up after his shifts by his mother or dropped home by the manager but on this night, he had arranged with his mother that he would use her account to take an Uber home. He had done this at least once before.

2. [13]

   The complainant made the booking request via the Uber app on his phone at 9.34pm. The applicant accepted the request at 9.36pm and arrived at the restaurant a very short time later. The complainant sat in the rear left seat of the car and the journey commenced. (Uber records and location tracking enabled times and places to be precisely identified. [4] )

3. [14]

   The applicant started asking the complainant questions. He asked whether he had any siblings and the complainant responded. He then asked, “Are you into men or women?” The complainant told the jury he felt “really uncomfortable” but responded, “Men”. [5] The applicant then asked the following questions, to each of which the complainant answered “No”:

4. [15]

   As they approached the destination the applicant diverted from the designated journey and stopped the car in the vicinity of a park (sometimes referred to as a reserve). He manipulated his phone so as to terminate the trip but told the complainant he needed to check on his (the applicant’s) family. It was common ground that the trip commenced at 9.36pm, it was stopped at 9.45pm and the complainant alighted near his home at 9.57pm. [6]

5. [16]

   After terminating the trip, the applicant drove around the surrounding area before again stopping in the vicinity of the park. It was now almost 9.50pm. The complainant recalled feeling he was going to die or get hurt. He said, “I remember freezing. I couldn’t do anything. I couldn’t do anything. I just couldn’t move.” [7]

6. [17]

   The applicant alighted and got into the back seat. The complainant heard a belt or button being undone. The applicant pulled his pants down below his knees. He put his left hand behind the complainant’s head and rubbed it for a couple of seconds. He asked the complainant to remove his mask (it being the era of COVID-19), the complainant shook his head and said, “No”. The applicant asked again and the complainant complied as he did not want to get hurt.

7. [18]

   The applicant then pushed the complainant’s head downwards and into his “private area”, forcing his penis into the complainant’s mouth (Count 1). The complainant tried to pull his head back using both hands to push on the applicant’s knees, but the applicant pushed his head down harder. This continued for a couple of minutes until the applicant let go of the complainant’s head.

8. [19]

   The complainant said that he felt, “very violated” and “very humiliated” as this occurred. He said, “I was really upset. I felt that I had done something wrong to make him do that.” [8] He did not want the applicant to do what he did. He moved towards the left side door and turned his head away from the applicant.

9. [20]

   The applicant kissed the complainant around his neck and face for a couple of seconds and then kissed him on the mouth, forcing his tongue into the complainant’s mouth for about a minute (Count 2). While doing this, he put his hands down the complainant’s pants and “play[ed] around” with his penis for a few seconds (Count 3). The complainant was not wearing underwear.

10. [21]

    The car was stopped in this location for about 6 minutes and 43 seconds. The complainant said that while the offending was occurring, he felt “extremely violated.” He said: [9]

11. [22]

    The complainant confirmed he did not want the applicant to kiss him or touch his penis.

12. [23]

    The applicant put his pants back on and said, “Show me your phone”. The complainant showed him his phone and the applicant said, “I want to see you give me five stars”. The complainant told him that he had.

13. [24]

    The applicant returned to the driver’s seat and drove away. As they approached the complainant’s home, the applicant asked which house he lived in. The complainant said, “I can get out here”. The car stopped and the complainant quickly left. The applicant spoke to him through an open window, saying something about having liked what had occurred.

14. [25]

    The complainant entered his house and saw his mother in the loungeroom. He said, “That guy was really weird”. She asked, “How?” and he replied, “He was just asking really weird questions, like if I had siblings”. [10] His mother observed that he “wasn’t himself”. [11]

15. [26]

    Later, the complainant’s stepfather asked him, “What’s wrong mate?” The complainant began crying and said, “He raped me”. His stepfather and mother said, “What?” and he replied, “He kissed me, he touched me, he raped me”. His mother said, “You can’t lie about this” and the complainant responded, “I’m not lying about it”. [12] The matter was reported to the police. The applicant was arrested the following night.

16. [27]

    In an interview with police, the applicant said he drove the complainant directly home from the restaurant and did not take any detours or stop at any time. He agreed he had “general conversation” [13] with the complainant but denied asking him about his sexual preferences and sexual history. He denied that any sexual activity had occurred between them. He said he was not “gay” [14] and did not have any attraction to men.

17. [28]

    At trial the applicant said that after the complainant had entered his car, there was some general conversation before the complainant volunteered that he was gay and asked about the applicant’s sexuality. The complainant continued the conversation by asking whether the applicant went to any clubs or gay bars and whether he used any dating apps (to which the applicant said he sometimes used Grindr). After turning into the complainant’s street the complainant asked, “Would you be interested in – interesting if I suck your cock?” The applicant said he replied, “Maybe, yes”. The complainant then directed him to an appropriately secluded location.

18. [29]

    It was the applicant’s version that there was consensual sexual intercourse at the direction of the complainant. The complainant asked him to pull his pants down and when he had done so, the complainant began to fellate him. He kissed the complainant on the cheek and put his hand on the complainant’s penis “for the few seconds”. [15]

19. [30]

    The applicant said he did not become erect during the fellatio and told the complainant they had to stop as they were “not a good match”. [16] He said the complainant asked him to keep kissing until he became “hard”, but that he responded, “No, we have to stop here.” He then dropped the complainant off at his home.

20. [31]

    The applicant told the jury in his evidence-in-chief that he estimated he told “80 maybe” lies in his police interview. The lies related to the course of events during the Uber trip and whether any sexual conduct had occurred. He said he lied because he was “very scared” due to being Muslim. He said, “it’s against my religion, my culture”. [17]

21. [32]

    It is proposed to deal first with the applicant’s contentions as to discrete errors in the trial process and matters giving rise to or contributing to a miscarriage of justice before dealing with the overarching contention that the verdicts of the jury are unreasonable or unsupported by the evidence.

22. [33]

    None of the grounds or issues involve a question of law alone and so leave is required pursuant to s 5(1) of the Criminal Appeal Act. Matters concerned with the judge’s summing up were not raised at the trial and consequently, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is also engaged.

Issue 1: Complaint about disclosure

1. [34]

   The applicant’s complaint about disclosure arises under Grounds 1 and 4. It largely concerns a report about the complainant that was responsive to a subpoena issued on behalf of the defence to the Commissioner of Police calling for production of “all police reports or intelligence records [relating to the complainant] from 7 July 2021 to 20 February 2023”. [18]

2. [35]

   A solicitor for the Commissioner appeared before the trial judge on 24 February 2023 (Day 2 of the trial) and was granted leave to file in court a notice of motion seeking orders including: [19]

3. [36]

   After receiving a confidential affidavit, his Honour heard submissions by the solicitor for the Commissioner in closed court, in the absence of the parties. Upon reopening the court, he announced: [20]

4. [37]

   Notably, on the next hearing day (27 February 2023), his Honour agreed to a request by counsel for the applicant to make further submissions about a perceived lack of procedural fairness involved in the process from which he had been excluded. [21] Such submissions were made at a convenient point later that day. As the hearing occurred in closed court and all the documentary evidence was confidential (there being no open affidavit), counsel was hampered in what he could say. As to the confidentiality of documentary evidence, the solicitor for the Commissioner explained, “the nature of the claim makes it very difficult for my client to really put anything in open evidence, especially in respect of the public interest”. [22]

5. [38]

   Having heard further submissions for the applicant and the Commissioner, his Honour said: [23]

6. [39]

   On 6 March 2023, his Honour delivered a judgment which was opaque in terms of the content of the document in question to preserve confidentiality. [24] His Honour first stated:

7. [40]

   Accepting that he had made short-service orders for the subpoena and had considered it to have legitimate forensic purpose at that time, his Honour nevertheless dealt with the Commissioner’s claims. He found the document “is caught by s 29” of the Children and Young Persons (Care and Protection) Act 1998 (NSW). [25] That provision is, relevantly, as follows:

8. [41]

   His Honour proceeded to deal with the claim of public interest immunity under s 130 of the Evidence Act 1995 (NSW). First, he said: [26]

9. [42]

   Continuing, he found that there was “a sound basis for a claim of public interest immunity” which was not outweighed by “the public interest in the material being available” [27] and as such, the Commissioner’s claim was upheld.

10. [43]

    The Crown in this Court observed that no application for leave to appeal was brought by the applicant in respect of the judge’s ruling, pursuant to s 5F(3) of the Criminal Appeal Act. [28] Whether that would have been a practical step with the disruption it would entail midway through a relatively short criminal trial was unaddressed.

11. [44]

    The applicant’s submissions complain that his exclusion from the closed court hearing and from not being permitted to see the confidential document was unfair. It was his contention that relevant or not, there should have been disclosure to both parties and to the jury. He claimed to have “a right to know”. He submitted, [29] “Non-disclosure of any document presented in the court or suppression of any evidence is highly inconvenient and ‘miscarriage of justice’.”

12. [45]

    The complaint of unfairness was the essence of the applicant’s submissions under “Ground 1 – Non-Disclosure of Evidence” and was reiterated under “Ground 4 – Fair Trial”.

13. [46]

    Raised within “Ground 4 – Fair Trial” and “Ground 3 – First Witness” was a complaint by the applicant that the jury was unaware that a subpoena and warrant had been issued to secure the attendance of the complainant’s stepfather to give evidence. This issue will be dealt with below, under the heading “Complaints about the conduct of the trial”. In short, the applicant’s claim that the jury did not know a subpoena and warrant had been issued for the complainant’s stepfather, is incorrect. The Crown led evidence before the jury from the police officer-in-charge to the effect that police had taken a statement from the complainant’s stepfather and had served a subpoena upon him but that he had indicated he would not be attending court and had indeed not attended. [30] The jury also heard through cross-examination by the applicant’s counsel that a warrant had been issued for the arrest of the stepfather, that police had not been able to execute that warrant and as a result, the stepfather was not a witness in the case. [31]

14. [47]

    Returning to the non-disclosure of anything pertaining to the report which was responsive to the subpoena, the Crown pointed out that it was through the prosecution’s duty of disclosure that the defence became aware of the existence of a document that was disclosable but could not be disclosed because it attracted a claim of privilege. [32] The nature of the privilege was that the contents of the report could not be disclosed as it was the subject of both the mandatory confidentiality provisions of s 29 of the Children and Young Persons (Care and Protection) Act as indicated above, and the claim of public interest immunity under s 130 of the Evidence Act.

15. [48]

    The fact the trial judge was prepared to allow counsel to make further submissions on the subject, despite having already announced his ruling, indicates that his Honour was sympathetic to concerns expressed by the applicant’s counsel about a perceived lack of procedural fairness. Nevertheless, the judge was bound to acknowledge the prohibition pursuant to s 29 (at least) and prohibit disclosure of the report’s contents.

16. [49]

    In the end, the fact the report was found to be entirely irrelevant to any issue in the trial is determinative of there having been no miscarriage of justice.

Issue 2: Complaints about the conduct of the trial

1. [50]

   The complainant’s stepfather was clearly a material witness concerning the complainant’s first disclosure a very short time after the offending: see above at [23]. He did not attend to give evidence despite a subpoena having been served on 17 February 2023 (6 days before the trial commenced) and an arrest warrant being issued on 28 February 2023. In the absence of the jury, on the morning of the last day of evidence in the Crown case, the prosecutor informed the judge that the stepfather was an interstate truck driver and therefore, might be interstate. She also told his Honour that the stepfather had called the officer-in-charge the previous day and “indicated he won’t be coming to court, and they won’t be able to locate him”. [33]

2. [51]

   Counsel for the applicant submitted that the judge should give a direction in accordance with Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1. [34] The judge acceded to that request and gave a direction in standard terms, the central aspect of which was that the jury could “take the fact that there is no evidence from that witness into account when you decide whether the Crown has proved the guilt of the accused”. [35]

3. [52]

   The applicant’s submissions on this subject do no more than recount the fact that the stepfather, as “the first witness”, did not give evidence. There is no complaint in these submissions, nor was there at trial, of any error by either party or the judge.

4. [53]

   There is nothing of significance in this ground.

5. [54]

   The applicant referred to a claim he made in his police interview and trial evidence, that he had a missed call on WhatsApp from his sister in Pakistan while he was with the complainant, and that he called her after he dropped the complainant at his home. In support of the correctness of this, he referred in his written submissions to two entries showing his sister’s phone number on 8 July 2021 in Exhibit T (a Cellebrite extraction report from his phone). One entry was at 21:51:10 and was indicated as a “Missed Voice Call”. The other was at 22:59:59 which he erroneously claimed was “Out Going”. [36]

6. [55]

   The applicant’s contention is that the Crown unfairly alleged he had lied about having called his sister.

7. [56]

   To provide context for the following, data obtained from Uber indicated that the complainant entered the applicant’s car at about 9.36pm and alighted at about 9.57pm. [37] The car was stationary from 9:49:48 to 9:56:31. [38]

8. [57]

   In his police interview, there was the following discussion on this subject: [39]

9. [58]

   In his evidence-in-chief, the applicant said that after the complainant had alighted, he drove off towards Penrith and was looking for more work via his Uber application. On the way, he pulled over and called his sister via WhatsApp. [40]

10. [59]

    In cross-examination, he was taken to Exhibit T and agreed that the entry at 21:51:10 was the missed voice call on WhatsApp from his sister. It was then put to him that in the extraction report, there was no record of any phone call to his sister on WhatsApp prior to 11pm (which was the last entry on the report): [41]

11. [60]

    The applicant was then shown the extraction report (which was MFI.15 at that stage, but later became Exhibit T): [42]

12. [61]

    The Crown submitted that the complaint about being unfairly accused of lying was not borne out by the evidence. The Crown did not contend that the applicant did not call his sister at all. Rather, it contended he did not call her when he had claimed. As the record showed, no such call existed until 11pm (over an hour after the complainant alighted at about 9.57pm). Even then, the entry the applicant claimed was an outgoing call at 22:59:59 was in fact, described in the report as an “iMessage” and not “Out Going” as he claimed. [43]

13. [62]

    In her closing address to the jury, the prosecutor referred to her cross-examination of the applicant in which he agreed he had told lies. She said the lies were relevant to the credibility of the accused and that three lies in particular were also relied upon as the basis for inferring a consciousness of guilt: “the route that he drove, the stops that he made, where he made those stops and the tracking of the vehicle by Uber not only in the trips but also outside of that”. [44]

14. [63]

    It is significant that the applicant’s phone call to his sister was not mentioned during the closing addresses of either prosecution or defence counsel. This may be explained by the fact that many questions were asked of the applicant during cross-examination which contained an assertion that he had lied, particularly to the police in his interview, and on many occasions the applicant agreed. It was common ground that he had lied. Defence counsel dealt with that fact in his address as follows: [45]

15. [64]

    The position appears to be that the evidence (Exhibit T) supported the assertion of the prosecutor that he did not call his sister soon after having parted company with the complainant. In any event, this fact was not significant in the way the Crown case was presented to the jury.

16. [65]

    This ground is rejected.

17. [66]

    The submissions supporting this ground were confined to a claim that the applicant was disadvantaged in giving evidence because English was his second language.

18. [67]

    The only issue raised during the trial regarding this subject occurred during a break in cross-examination when the applicant’s counsel said to the judge: [46]

19. [68]

    This prompted the judge to ask the prosecutor to take care about “using some language that may be more confusing” [47] . No further discussion was had on this topic.

20. [69]

    No disadvantage is discernible from the transcript, and it may be inferred from the above that nor was it otherwise discernible to the applicant’s counsel. Accordingly, there is no substance in this ground.

21. [70]

    The first of numerous issues raised under this ground was that the judge failed to direct witnesses to be honest in their answers. Each witness either swore or affirmed they would tell the truth and as such, no direction was necessary. The second was that “no-one noticed that [the complainant] was not accurate and honest in his evidence and in police interview”. That was a matter for the jury to decide.

22. [71]

    It was submitted that the judge erroneously told the jury, “but you will recall that he [the applicant] accepted that he did put his penis into [the complainant’s] mouth”. [48] This was a reference to the judge’s directions as to the essential elements of the offences where for Count 1, the Crown was required to prove that sexual intercourse occurred. In this case, that was constituted by “the introduction of any part of the penis of a person into the mouth of another person”: s 61HA(b) of the Crimes Act 1900 (NSW). In his evidence the applicant said, “So I open my pant and pull down just below the knees. And then he start sucking my cock”. [49] The issue was whether the complainant did not consent and whether the accused knew or was reckless as to that. There was no dispute that sexual intercourse by way of fellatio occurred.

23. [72]

    Immediately after the jury left the courtroom at the next break in the summing up, after the judge had directed the jury as to the elements of the offences, his Honour asked if either party had anything they wished to raise. The prosecutor and the applicant’s counsel responded in the negative. [50] That is indicative of neither of them perceiving anything erroneous or problematic in the directions that had been given. There is nothing significant in the applicant’s complaint concerning this subject.

24. [73]

    A further complaint was that the judge reminded the jury of submissions made in the prosecutor’s closing address which concerned aspects of evidence which supported the version put by the complainant including his Honour saying: [51]

25. [74]

    The prosecutor’s address on this subject was as follows: [52]

26. [75]

    The applicant argued that what the judge said was erroneous because he omitted to mention that the very first complaint the complainant made was to his stepfather. However, what the judge said was entirely correct. It was appropriate for him to say the complaint was made “to people, particularly his mother, his aunty” given the mother and aunt had given evidence, whereas the stepfather had not.

27. [76]

    The applicant also raised a concern about the trial judge’s directions about complaint more generally. His Honour gave conventional directions that if the jury accepted the complaint evidence, then it would constitute evidence of the occurrence of the events complained of and could also be used to support the complainant’s credibility. The directions included cautionary considerations, for example, that the source of the complaints was the complainant himself. [53] The applicant submitted in this Court that the directions were “not fair” but it is understandable that his counsel did not raise any issue at trial because there was no legal error. The evidence of what the complainant said was admissible to prove the occurrence of what he had asserted: s 66(2) Evidence Act 1995 (NSW); Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [32]-[34] (Gleeson CJ and Hayne J); [44]-[45], [59] (Gaudron and Kirby J); [74], [77], [88]-[89] (McHugh J).

28. [77]

    Another issue raised by the applicant concerned the judge’s reference to the applicant’s lies to police. The applicant took issue with the extent to which the judge referred to his lies generally and also with a direction that the three lies identified by the Crown could provide a basis for inferring a consciousness of guilt (see above at [59]).

29. [78]

    The extent to which the judge referred to lies was commensurate with the cases presented by the parties. The applicant conceded he told many lies to police but endeavoured to explain them: see above at [27].

30. [79]

    The directions given about lies arising from a consciousness of guilt were entirely orthodox. First, there was a direction as to the definition of a lie and the need to be satisfied the accused had deliberately lied. Next, there was a direction that a lie needed to concern some significant circumstance or event connected with the alleged offence. Then there was the requirement that the accused told the lie because he feared that telling the truth might reveal his guilt in respect of the charges he was facing; that is, that the truth would implicate him in the commission of the offences. Finally, the jury were warned that people do not always act rationally and that telling a lie may be explained in other ways. After giving some hypothetical examples he said: [54]

31. [80]

    A little earlier, when reminding the jury of the evidence relating to the topic of lies, his Honour provided a full quotation of the applicant’s explanation for lying: [55]

32. [81]

    The applicant claimed that the judge told the jury, “You take a lie into account as … evidence of the accused guilt” which he characterised as meaning, “Judge was trying to tell jury members that I am guilty for this activity occurred”. [56] This is contrary to what the judge said. His directions included: [57]

33. [82]

    The Crown submitted, and I accept, that, “When viewed as a whole, the summing up was fair and balanced. None of the complaints made by the applicant disclose error, establish that the summing up deprived the applicant of a fair trial, or amount to a miscarriage of justice.” [58]

Issue 3: Complaints about the conduct of counsel

1. [83]

   The applicant submitted his barrister did not “fight enough” to prove his innocence. This submission was particularised by the submission that the applicant thought his barrister was trying to “proof [sic] me gay” instead of trying to prove he was innocent because the sexual interaction had been consensual. It was alleged the applicant’s legal team had suggested to him he should wear colourful clothing because he was gay. The applicant also contended his privacy was breached when his legal team informed his ex-wife of his sexuality. [59]

2. [84]

   According to the applicant, he was not given enough guidance, there was not enough communication, he was not told of the availability of a translator, and his barrister did not fight enough for what he called, “the Supreme Court affidavit”. [60]

3. [85]

   The Crown submitted that the applicant’s complaints regarding his barrister’s conduct relating to his sexuality and privacy were of an ethical nature and had no bearing on the result of his trial. [61]

4. [86]

   As to the submission his trial counsel did not “fight enough” to prove him innocent, the Crown submitted that an objective review of the record of trial indicates the applicant’s case was firmly put to the jury in counsel’s opening and closing addresses, and in the cross-examination of the complainant. The affidavit which the applicant referred to was the subject of oral argument over the course of several days and his trial counsel had attempted to gain access to the material by issuing subpoenas and obtaining short service orders. The Crown submitted that just because the applicant’s counsel was unsuccessful does not mean there was a failure in the trial process. [62]

5. [87]

   As regards the lack of communication and/or guidance, the Crown submitted the applicant did not point to any specific acts or omissions which had the capacity to prejudice his trial. His complaint about not being informed of the availability of a translator and his proficiency in English is dealt with above at [62]. [63]

6. [88]

   Relevant principles were helpfully distilled in the Crown’s written submissions. Those pertinent to the applicant’s complaints are, in large part, encapsulated in the following from the judgment of McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79] (footnotes omitted):

7. [89]

   The Crown’s response to the matters of “disappointment” raised by the applicant must be accepted. At a subjective level, it is clear the applicant was disappointed in the outcome of the trial. However, looking at what are largely generalisations with little particularisation of anything of substance, there is nothing in the applicant’s complaints that established any material irregularity in the trial process, or which had the potential to affect the verdicts returned.

8. [90]

   The applicant submitted that his credibility and morale were negatively impacted by the fact he had no support during the trial process from his family, friends or members of his community. [64] This does not amount to an error or irregularity in the trial.

9. [91]

   He also contended that the conduct of the prosecutor in cross-examination made him feel “shattered and totally broken” as he continuously listened to words such as, “[liar], you lied, you are lying, you are not honest and this is not true”. He submitted that the prosecutor kept putting pressure on him to admit he was wrong and suggested he did not have a good memory. The applicant also stated, “even though I cannot express to anyone what I have been going through, not having a support is not easy”. [65]

10. [92]

    This complaint about the conduct of the prosecutor during the cross-examination is baseless. There was no controversy about the fact the applicant had told many lies to police which is clear from the following examples of the cross-examination: [66]

11. [93]

    The complainant’s credibility was put in issue by the defence case and the applicant was advancing an alternative account of events. Accordingly, his credibility was also a legitimate matter for the jury to consider. There was nothing surprising, let alone unfair, about lies being a topic thoroughly explored by the prosecutor in cross-examination.

12. [94]

    The applicant also submitted that he gave no references concerning his personality and character because his barrister never told him to provide any. [67] However, as the Crown submitted, this overlooks the fact that the police officer-in-charge gave evidence of inquiries which revealed the applicant had no criminal history in Australia, Pakistan or the United Kingdom. Counsel for the applicant sought a good character direction and the Crown conceded that a “full good character” direction should be given. [68]

13. [95]

    The judge obliged and directed the jury in unremarkable terms. He first said that as the evidence of good character was not challenged by the Crown the jury “should accept the fact that the accused is a person of good character”. He explained that it was relevant in two respects; it could be taken into account “by reasoning that such a person is unlikely to have committed the offence charged by the Crown” and by reasoning that “a person of good character is less likely to lie or give a false account either in giving evidence before you, as he says he has not, and when he gives you the answers to the questions he was asked about what occurred on that night”. [69]

14. [96]

    It is unknown whether there was further evidence concerning the applicant’s character that might have been placed before the jury. If there was, it is likely to have been extremely limited in that the applicant’s sexuality was a closely guarded secret known only to his best friend. He gave evidence that it was otherwise unknown, even to his wife, and that his identity was not disclosed to persons he met through online dating applications. [70]

15. [97]

    There is no merit in any of the issues raised under Grounds 10 and 12.

Issue 4: Unreasonable or unsupportable verdicts

1. [98]

   Numerous matters raised in the applicant’s submissions may be treated as relevant to an overarching assertion that the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence: s 6(1), Criminal Appeal Act.

2. [99]

   The principles are settled and well-known: see, for example, The King v ZT (2025) 281 CLR 137; [2025] HCA 9 at [7]-[11] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ); Smith v R [2025] NSWCCA 104 at [32]-[40] (Bell CJ).

3. [100]

   The core principles are set out in M v The Queen (1994) 181 CLR 487 at [493]-[495] (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63:

4. [101]

   The applicant contended, in effect, that the complainant’s credibility was adversely affected by the lack of evidence of red marks, scratches, or bruises caused by the forceful actions he alleged. [71] However, there was no evidence that any such marks or injuries would necessarily have been caused by the non-consensual actions the complainant alleged.

5. [102]

   No complaint was made at trial about the judge reminding the jury of a point made by the applicant’s counsel in his closing address about the absence of any injuries or struggle and then directing that, “just because there was no struggle or injury is not by itself a reason to regard the activity to be as consensual”. [72]

6. [103]

   In short, while this issue was available for defence counsel to raise with the jury, its legitimacy and weight in the context of the activity described by the complainant was a matter for the jury.

7. [104]

   The applicant’s submissions supporting this ground summarised the defence case theory which was that the complainant alleged he had been sexually assaulted because he was disappointed he was unable to engage in consensual sexual activity with the applicant because of the applicant’s failure to achieve an erection. [73] Counsel asked the complainant whether he was disappointed when he left the applicant’s car and he replied, “I was angry and really upset”. [74]

8. [105]

   The Crown submitted that the complainant gave cogent and consistent evidence of not having consented to sexual activity with the applicant, and that he maintained this evidence under extensive cross-examination. The jury had the advantage of seeing and hearing this evidence and it was clear from the verdicts that they did not accept the applicant’s alternative version of events. [75]

9. [106]

   The basis of this ground is the applicant’s contention that the complainant made a false statement to police and falsely stated in his evidence that the applicant was wearing underwear. According to the applicant, he was not wearing any underwear on the night and if he had, then the complainant’s DNA would have been found on his underwear rather than on his pants (the complainant’s DNA was found on the zip area of the applicant’s pants). [76] It is assumed the applicant raised this issue to impugn the complainant’s credibility because whether or not the applicant was wearing underwear was of no significance.

10. [107]

    The Crown’s response was to draw attention to the fact that the complainant did not give evidence that the applicant was wearing underwear at the time of the offending. His evidence concerning the commencement and conclusion of the interaction in the rear of the car included, “I could see him pulling his pants down” and “I remember him taking his hand away and moving his hands back to himself and then he was putting back his, putting back on his pants and things like that”. [77] This evidence was not the subject of any cross-examination by trial counsel. [78]

11. [108]

    The applicant’s assertion is not correct.

12. [109]

    The applicant stated the complainant put one address as the drop off address in the Uber trip request, but after the sexual interaction had concluded, he directed the applicant to drop him off at a different address. The applicant said he knew this different address was the complainant’s correct residential address as he had directed him there. [79]

13. [110]

    The complainant’s evidence was that when the car was in the vicinity of his home the applicant “continued to ask which house was mine. I then said to him, ‘I can get out here’.” [80]

14. [111]

    The complainant’s home was on a corner block which was clear from a map that was in evidence. [81] The place where he alighted from the car was around the corner from the actual street address. The point sought to be raised by the applicant is of no significance.

15. [112]

    This ground of appeal relates to an assertion by the applicant that there were factual inconsistencies in the complainant’s story as to how and when the five-star Uber rating was given.

16. [113]

    The applicant submitted that in his report to police (presumably his statement), the complainant said that when he dropped the complainant off he said, “make sure I will get five stars”. But, in his evidence at court, this changed and the complainant said, “driver asked him to show his phone to make sure he give me five star when he was in the car with me at reserve”. According to the applicant, the complainant also said the following: [82]

17. [114]

    The applicant submitted that the complainant made false statements about the five-star rating and that his evidence did not make any sense.

18. [115]

    In response, the Crown submitted any perceived inconsistency within the complainant’s evidence is insignificant. The complainant did not deny giving the applicant the five-star rating and was consistent in his evidence that a conversation occurred where the applicant asked him for such a rating. [83]

19. [116]

    It was the complainant’s evidence that he did not understand how the Uber application worked or how to give a five-star rating. [84] He said that he, “press[ed] five star” and showed this to the applicant before turning his phone off. He thought that it “didn’t give him the five stars because I wasn’t willing to pay for the five stars after what he did to me”. [85] He was cross-examined on this point and stated: [86]

20. [117]

    The Crown submitted that any inconsistency did not undermine the veracity of the complainant’s account. [87]

21. [118]

    This issue about a five-star rating is insignificant and was peripheral to the critical issues in the trial. The objective evidence was that a five-star rating was submitted in the Uber app by the complainant. The complainant’s evidence was to the effect that it was the applicant who wanted him to give a five-star rating. The defence case was that the complainant did so because “there was no issue at all with the trip” (a proposition the complainant rejected). [88] The applicant gave evidence that when the complainant alighted from the car, he said, ‘I will give you five-stars, and then he shut the door”. [89] That contention contradicts the defence theory that the complainant was so disappointed about the applicant’s inability to achieve an erection in order to engage in sexual activity, that it motivated him to falsely complain of having been sexually assaulted.

22. [119]

    According to the applicant, the false statements he gave in his police interview can be explained by reason of his bisexuality being against his religion as a Muslim man and that it was embarrassing for him to admit he had sexual relations with a man. He said he was ashamed and humiliated and did not want the truth to come out or to lose his family. The applicant said he was aware he had a right to silence. He did not know why he chose to lie to the police. He regretted doing so and was remorseful about it. [90]

23. [120]

    The Crown submitted that there is such a marked difference between the applicant’s account in his police interview and in his evidence at court that his lies have a significant bearing on his credibility, irrespective of him conceding he had lied. [91]

24. [121]

    If the point the applicant sought to make in relation to this issue was that the jury should have accepted his explanation for lying to the police, and rejected the Crown’s contention that it reflected adversely upon his credibility, the difficulty is that his explanation for the many lies was incomplete. The Crown pointed to repeated instances of the interviewing police telling the applicant there were no issues with the allegation involving homosexual intercourse and that homosexuality was not illegal in Australia. Further, the Crown asserted the applicant’s lies were not limited to his sexuality. The applicant also lied about the route he drove that night and whether he saw the complainant’s face. The applicant agreed he could have told the police the truth about these matters without disclosing his sexuality. For example: [92]

25. [122]

    It was well open to the jury to accept the prosecution case. It was to the effect that a 16-year-old boy was propositioned for sex by a rideshare driver while inside his vehicle at night during the pandemic lockdown era. He commenced with questions which quickly led to disclosure by the complainant of his homosexuality and the applicant asking questions, testing whether he might be interested in sexual activity. The complainant gave credible evidence of his reaction to such questions and how this progressed to him feeling fearful he was going to get hurt, or even die, and how he froze and felt unable to do anything. His description of the applicant’s demands and physical actions during the course of the events in the back seat of the Uber was compelling.

26. [123]

    The evidence of what occurred immediately upon the complainant’s arrival home was redolent of shock, fear and bewilderment as to what he had just experienced. His credibility was substantially enhanced by the manner and terms of the complaints to family members and the subsequent confirmation of his account by the DNA evidence.

27. [124]

    It was necessary for the jury to reject the applicant’s evidence as a reasonably possible version of events. That would not have been difficult with the inherently unlikely aspects it entailed, and the substantial damage occasioned to his credibility by the need to concede having told many lies to police upon his arrest. Some of the lies were susceptible to explanation by way of religious and cultural factors but not all, as has been discussed above (at [117]). The jury could well have reasoned that the change in the applicant’s account from a complete denial of any sexual activity having occurred to one in which he accepted that it occurred but claimed it was consensual, was occasioned by the inclusion in the prosecution case of irrefutable DNA evidence which made denial no longer tenable.

28. [125]

    On my assessment of the whole of the evidence, I am not persuaded that anything the applicant has raised in his submissions to this Court raised a reasonable doubt as to his guilt. I am satisfied that it was open to the jury to return verdicts of guilty on each count in the indictment. [93]

Other documents filed with the applicant’s written submissions

1. [126]

   As the applicant lacks legal representation, brief reference should be made to two documents which were filed with his written submissions that are relevant to the proposed appeal against conviction but which have not been referred to in the above reasons.

2. [127]

   The first is headed, “[The complainant’s] lies”. [94] It lists matters of disagreement with the complainant’s evidence. It is more a statement of the applicant’s contrary case than a submission.

3. [128]

   The second document is headed “Your Honour” and appears to be a broad summary of the proposed appeal against conviction for the benefit of this Court. [95] To the extent it is relevant, it reiterates various points made earlier in the written submissions under specific grounds which require no further reference.

Conclusion as to appeal against conviction

1. [129]

   None of the substantive grounds sought to be raised by the applicant have merit. The implied overarching contention that the verdicts of guilty are unreasonable or cannot be supported by the evidence must also be rejected.

2. [130]

   As I have indicated above (at [8]), I would refuse leave to appeal against conviction because of the absence of merit.

The sentence

1. [131]

   The applicant also sought leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules. As none of the grounds of appeal can be upheld, I propose that leave be refused.

2. [132]

   It is convenient to reiterate details of the offences and sentences:

3. [133]

   The aggregate sentence was 7 years imprisonment with a non-parole period of 5 years, 3 months. The commencement of the sentence was backdated to 26 February 2023 to allow credit for pre-sentence custody.

4. [134]

   The Crown tendered a number of documents, including a victim impact statement, describing the impact the offending has had upon the complainant’s wellbeing and on other facets of his life such as his relationships, education, and employment. He suffered from flashbacks and nightmares. [96]

5. [135]

   The Crown also tendered a Sentencing Assessment Report and the case notes of a psychologist. It was evident from these that the applicant maintained his case that the sexual activity was consensual and initiated by the complainant. The applicant claimed that being on remand had been a negative experience for him and his family, but did not recognise the impact of his offending upon the victim. The applicant was initially assessed as having a medium to low risk of re-offending but this was overridden by findings of a Corrective Services consultant psychologist who undertook a Static-99R assessment and found the applicant to have a medium risk. [97]

6. [136]

   The applicant relied upon a psychological report by Mr Chafic Awit. It included that the applicant denied the offending, claimed the activity was consensual and asserted the complainant brought the charges because he had been rejected by the applicant. The applicant reported anxiety regarding financial and immigration matters prior to the offence date which had been exacerbated since being charged. It was the opinion of Mr Awit that the applicant, at the time of his assessment, displayed symptoms of depression and anxiety within the “extremely severe range” and that he met the criteria for “an adjustment order with mixed anxiety”. [98] Mr Awit was of the opinion the applicant presented as a low risk of reoffending.

7. [137]

   The applicant also provided a letter to the court which expressed his “guilt and remorse for the crime [he had been] found guilty of.” He apologised for lying to the police and discussed the impact of his incarceration on himself and his family. He asked the sentencing judge to sentence him to an “ICO/CCO”. He restated his claim as to the consensual nature of the sexual activity and expressed his regrets for what occurred that night. The sentencing judge regarded this regret as being for the applicant’s own predicament rather than the offending. [99]

8. [138]

   The applicant gave evidence on sentence. He referred to assaults in custody and said that at the time of giving evidence he was in the protection wing. He explained he had pain in his kidney and wisdom teeth and suffered from nerve problems. However, he stated he had been receiving medical attention and that correctional officers had promptly responded to instances of mistreatment. [100]

9. [139]

   In describing his assessment of the objective seriousness of the offending, the sentencing judge referred to the following: [101]

   1. (1)

      The complainant was vulnerable by virtue of his age (16 years) and the applicant was in a position of trust to deliver him home safely, which he breached in order to obtain sexual gratification.

   2. (2)

      The forcefulness of the offending and the attempts by the complainant to free himself.

   3. (3)

      The applicant had actual knowledge the complainant was not consenting (as opposed to being reckless as to consent).

10. [140]

    His Honour concluded that Count 1 was a “serious offence of this kind” and Counts 2 and 3 were “significant offences”. [102]

11. [141]

    The sentencing judge referred to various features of the applicant’s subjective circumstances including the following:

12. [142]

    At the time of offending, he was 38 years old and married with two young children. He was the provider for his family but had experienced financial hardship during the COVID-19 lockdowns. He was born in Pakistan and had a safe and supportive upbringing. His mother died when he was aged 4 and his father (whom he had a close relationship with) died when he was aged 14. He had moved between the United Kingdom and Pakistan before settling in Australia and had no criminal history in any of these countries. [103]

13. [143]

    The applicant had a Masters of Professional Accounting but had struggled to find work in this profession. Prior to his offending, he was experiencing trouble with his visa. The sentencing judge accepted that conviction for the offences will jeopardise his visa and ability to stay in Australia. [104]

14. [144]

    When the applicant was 18 years of age he realised his sexual attraction to men. His homosexuality was a decisive factor in why he decided to live in Australia. He was aware that if his sexual orientation was discovered in Pakistan, he would be liable to extreme punishment. He had not told his wife or anyone publicly about his sexuality until he gave evidence in the trial. At the time of assessment by the psychologist, Mr Awit, the applicant’s family did not know the true and sexual nature of his offending. [105]

15. [145]

    The sentencing judge accepted the applicant was a person with no criminal record and was of prior good character. [106] He accepted the applicant had a low risk of reoffending and reasonable prospects of rehabilitation (later describing such prospects as “good”). [107] His Honour also acknowledged the financial and emotional impact the applicant’s absence would have on his family and the risk posed to the applicant’s visa status as a result of his conviction. [108]

16. [146]

    He did not find the applicant to be remorseful, nor did he consider there to be sufficient evidence to support a finding that the applicant’s time in custody would be more onerous, nor that a finding of special circumstances was warranted. [109] The impact of the Covid-19 pandemic was described as a “relevant consideration”. [110]

17. [147]

    His Honour considered there to be significant need for general deterrence and regarded specific deterrence, retribution, denunciation and recognition of harm as important. [111]

18. [148]

    He referred to the fact that the offences occurred during a single course of offending and so the sentences for Counts 2 and 3 would be partly cumulative on Count 1. [112] His Honour was satisfied for the purpose of s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that no sentence other than imprisonment was appropriate for each offence. [113]

Grounds of appeal

1. [149]

   The applicant sought to rely upon eight grounds of appeal, the first of which contended that the sentence was manifestly excessive. That ground will be dealt with after the other grounds which raised contentions as to discrete issues.

2. [150]

   Before turning to those grounds, it is necessary to acknowledge that, generally speaking, an appeal against sentence is concerned with whether there was some error in the sentencing process or outcome. This is clearly established: see, for example, Richardson v R [2021] NSWCCA 304 where, at [123]-[132], Johnson J discussed the authorities relating to the quite limited basis upon which this Court may receive evidence concerning matters arising or events occurring post-sentence. His Honour quoted Simpson J in Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [110]:

3. [151]

   The point of emphasising this fundamental aspect of an appeal against sentence is that the applicant’s submissions included a number of references to post-sentence events. To the extent that they do, they have been disregarded.

4. [152]

   Further, the applicant filed a number of letters by various people attesting to his personal qualities, general character and conduct post-sentencing, together with a number of certificates concerning courses and programs he had undertaken. These documents bear dates ranging from 26 June 2024 to 10 October 2025. [114] As they concern opinions expressed and events which had occurred post-sentencing, they may not be taken into account in relation to the appeal, but may become relevant in the event the Court is satisfied that error has been established and the Court is required to re-exercise the sentencing discretion in accordance with s 6(3) of the Criminal Appeal Act and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The applicant acknowledged this at the hearing of the application. [115]

Ground 2 – Wrong interpretation

1. [153]

   The applicant’s submissions under this Ground were often phrased in the present tense, describing his thoughts about remorse subsequent to sentencing. Allowing for English not being his first language, and for the reason just indicated, they are taken to be included in his criticism of the sentencing judge’s consideration of the evidence presented at the sentence hearing.

2. [154]

   The applicant submitted that the sentencing judge erred in his interpretation of the evidence on the subject of remorse. He said he felt remorse for the complainant because he (the applicant) had rejected him. His remorse extended to “every single moment for that night”. He submitted, “I am remorseful and I express my guilt for the crime I have been found guilty of”. However, that was immediately followed by the statement that, “It is very hard for taking responsibility for the action which I had not done it”.

3. [155]

   The applicant further pointed to matters relating to his good character such as having no criminal record as well as the fact he has a master’s degree. He also referred to the report of Mr Awit who was of the opinion his “risk of reoffending for any type of offence is low”. [116] These matters were acknowledged and taken into account, in the applicant’s favour, by the sentencing judge. How this was relevant to the claim of “wrong interpretation”, about remorse or anything else, was not explained.

4. [156]

   The sentence judge acknowledged that remorse is a mitigating factor which may be taken into account in determining an appropriate sentence but he referred to, and applied, the requirement in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act that this is contingent upon a court being satisfied of two features:

5. [157]

   The applicant gave the following evidence at the sentence hearing on the subject of remorse: [117]

6. [158]

   The sentence judge referred to this and concluded, “I cannot find that the offender is remorseful. [118] No other conclusion was available.

Ground 3 – Got bashed

1. [159]

   The applicant submitted that the sentencing judge did not consider or take into account his experience of assaults and abuse whilst in custody. The applicant stated he had been “bashed” and subjected to physical assaults and verbal abuse. He referred to having been “bashed”, resulting in bruises to his face and his spectacles being broken; having boiling water and hot coffee thrown at him; having his “buy ups” stolen; and having inmates call him names such as “rapist” and “pedo”. [119]

2. [160]

   The sentencing judge summarised the evidence concerning these matters in his remarks on sentence: [120]

3. [161]

   His Honour subsequently referred to the submissions of the applicant’s counsel about whether a finding of special circumstances should be made. Counsel contended that there should be such a finding based upon a combination of factors including that the applicant had been assaulted in gaol. [121] The judge declined to find special circumstances but said, “I have taken the matters referred to by Mr Strik into account in determining the overall sentence”. [122]

4. [162]

   The applicant’s contention that the “judge did not consider and did not take into account for sentencing” his adverse experience in gaol is not borne out.

Ground 4 – No references

1. [163]

   The applicant repeated his submissions in relation to the conviction appeal that there were no references to demonstrate his good character. He did not have the support of his family, friends or community throughout the trial or sentencing and no one gave evidence to the jury or the court in support of him. The applicant also stated, “No-one was there to support me because I cannot face anyone in trial because of my charges and my sexuality. I was embarrassed to be bisexual and could not tell anyone because I am Muslim and married”. [123]

2. [164]

   The applicant’s submission effectively acknowledged that the lack of references tendered on sentence was derived from his own choice. Nevertheless, there was no injustice arising from the absence of any character references as the sentencing judge found the applicant to be of good character, to have good prospects of rehabilitation and to be unlikely to reoffend.

Ground 5 – Not happy with barrister’s work

1. [165]

   The applicant submitted there was not enough guidance from his barrister or communication between them as to the case. He stated his barrister did not “fight enough” for him. His barrister did not request time off for him when he was assaulted in custody (although there was no explanation as to why that was needed) and did not organise character references. The applicant also referred to being held in protection, in a “SMAP” (Special Management Area Placement) area, in gaol. [124]

2. [166]

   There is no merit in this ground. As the Crown submitted, the applicant’s counsel made submissions urging a finding of special circumstances, partly on the basis that the applicant may spend more time in isolation to keep him safe. The sentencing judge was also referred to it being the applicant’s first time in custody, his low mood, his family situation, and pre-sentence custody. [125] Counsel also relied upon the applicant’s prior good character, a point which the Crown acknowledged and the sentencing judge accepted. [126]

Ground 6 – Bail time

1. [167]

   The applicant submitted that his time on bail was not considered by the sentencing judge, and his barrister did not say anything about it. The applicant was on bail for around 18 months and described it as like “home detention”; he was “restricted … stressed”; his family was struggling; and due to bail conditions, he could not go on holidays with them. [127]

2. [168]

   In some cases, the conditions of bail may be so harsh or restrictive that a court may treat the period on bail as the notional equivalent of custody, often referred to as “quasi-custody”. Adamson J observed in Bonett v R [2013] NSWCCA 234 at [50] that although quasi-custody may be a relevant consideration, it is not a mandatory relevant consideration. Price J observed in R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253 at [88] that “the onus of establishing whether an offender’s bail conditions amount to quasi-custody falls on the offender on the balance of probabilities”.

3. [169]

   No submissions were made that the applicant’s conditions of bail were so harsh or restrictive as to amount to quasi-custody. That is understandable as there was no evidentiary basis for the court to make such a finding. According to the Crown’s “Particulars of Trial” document filed in this Court, the restrictions on the applicant’s freedom whilst on bail were limited to requirements that he report to Penrith police station three days per week, live at a specified address, not enter specified locations, and not work in any ride sharing or public transport business. Aside from the last of these, such conditions are not uncommon among many offenders who are sentenced to full-time imprisonment following a period of conditional freedom in the community whilst on bail.

Ground 7 – Gaol records

1. [170]

   The applicant submitted that his good behaviour whilst in custody should be taken into consideration. He stated he had not been the subject of any negative case notes or “bad records”. He works, tries to socialise with other inmates and has completed short Corrective Services Industries (CSI) programs. The applicant was not eligible for any further educational programs or courses as he is not an Australian citizen. [128]

2. [171]

   The Crown submitted that the matters raised by the applicant do not demonstrate error. In light of the finding by the sentencing judge that the applicant has a low risk of reoffending and has reasonable prospects of rehabilitation, the ineligibility to complete sex offender programs was of little relevance. [129]

3. [172]

   These matters fall very largely into the category of events that have occurred post-sentencing and must be disregarded for the reasons given earlier. To the extent they refer to the applicant’s conduct while in custody prior to sentencing, that was for such a relatively short period (about 10 weeks) as to be of no material significance.

Ground 8 – Effects on life

1. [173]

   The applicant submitted that due to his time in custody he has lost everything, his “family … kids … future … home”. His life has been “ruined” and he will never regain everything he has lost and has nowhere to go upon release. The applicant also stated his mental and physical health has deteriorated. [130]

2. [174]

   The applicant gave evidence that he had received visits in gaol from his wife, nephew and niece, and he had contact with his children. [131] He was also receiving the medication he required for diabetes. [132]

3. [175]

   The sentencing judge referred to the report of Mr Awit and his opinion that the applicant had developed a number of anxiety and depressive symptoms since being charged. His Honour also referred to the applicant being very anxious about being returned to Pakistan following his sentence. He expressly accepted that the applicant’s “absence from his family does and will continue to cause ongoing financial and emotional strain on his young family and distress to the offender”. He referred to the applicant stating that since being in custody, he had experienced health issues including diabetes and kidney pain. [133]

4. [176]

   I am not persuaded that his Honour failed adequately to take into account any relevant aspects of the applicant’s personal circumstances.

Ground 1 – Manifestly excessive sentence

1. [177]

   The principles relating to a contention that a sentence is manifestly excessive were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows (citation of authorities omitted):

2. [178]

   The applicant submitted that his sentence is “harsh” and there was an “excessive amount of sentence”. In support of this submission, he emphasised this was his first time in custody, his lack of criminal history and corresponding good character, and the finding he had a low prospect of reoffending and had good prospects of rehabilitation. He stated he had been an Uber driver for 19 months prior to the offence and had never been the subject of a complaint. The applicant stated the harsh sentence impacted his family, career, and his future, and that he will be deported upon release. [134]

3. [179]

   The following from the judge’s remarks on sentence amply describes the seriousness of the offences:

4. [180]

   A number of favourable findings were made in mitigation of the sentence but the judge was obliged to impose a sentence that was proportionate to the gravity of the crime, having regard to the objective circumstances; in other words, a sentence which was not less than that which the objective gravity of the offence required: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] (Spigelman CJ).

5. [181]

   The aggregate sentence of 7 years’ imprisonment was largely influenced by the indicative sentence of 6 years, 6 months for the primary offence of sexual intercourse without consent. Bearing in mind the statutory guideposts that applied to that offence, a maximum penalty of 14 years and a standard non-parole period of 7 years, this assessment was clearly within the legitimate range of discretion reposed in the sentencing judge.

6. [182]

   The assessment of indicative sentences of 4 months and 16 months for the other offences, against the statutory guidepost of a maximum penalty in each case of 5 years, was also well within the range of the judge’s discretion.

7. [183]

   The sentencing judge applied the principle of totality in a measured way with the entirety of the applicant’s criminality being encompassed in the aggregate sentence of 7 years. This overall outcome is not unreasonable or plainly unjust.

Conclusion as to appeal against sentence

1. [184]

   None of the grounds of appeal concerning discrete issues, nor the overarching ground asserting the sentence is manifestly excessive, can be upheld.

Orders

1. [185]

   I propose the following order: