Alenezi v R

1. [1]

   ADAMSON JA: I agree with Basten AJA.

2. [2]

   BASTEN AJA: The applicant, Sayer Hamoud Alenezi, seeks leave to appeal from a sentence of imprisonment imposed on him on 8 October 2021 for a single offence, committed on 27 October 2019 at Woolloomooloo, of having sexual intercourse with a young woman without her consent and knowing that she was not consenting, being an offence under s 61I of the Crimes Act 1900 (NSW). The offence involved penile-vaginal intercourse. In sentencing the offender, the sentencing judge (Bennett SC DCJ) took into account a similar offence (recorded on a Form 1) committed shortly prior to the principal offence, which involved the insertion of the offender’s penis into the victim’s mouth.

3. [3]

   After allowing a discount of 25% for an early plea of guilty, in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), the judge imposed a sentence of 7 years and 6 months with a non-parole period of 5 years. The sentence commenced on 11 November 2019. The non-parole period will therefore expire on 10 November 2024.

Extension of time

1. [4]

   Although a notice of intention to appeal was filed on 28 October 2021, a notice of appeal was not filed within the 12-month period during which time the notice of intention to appeal had effect. [1] The notice of appeal was in fact filed on 31 July 2023. Although the Director of Public Prosecutions did not oppose the application for leave to file out of time, made pursuant to rr 3.5(1)(b) and 3.5(5) of the Rules, the Court must be satisfied that an extension is appropriate in the circumstances of the case.

2. [5]

   The standard form seeking leave to file a notice of appeal after expiry of the filing period was completed by the applicant’s solicitor, who stated that the matter was first assigned to the firm by Legal Aid NSW on or about 13 December 2022. The statement of reasons for filing the notice out of time was deficient in significant respects. First, the solicitor stated:

3. [6]

   A solicitor who accepts an assignment out of time must know that it will be necessary to seek an extension of time and that reasons will be required to explain the delay. The solicitor is, therefore, duty bound to make enquiries as to the reasons for the delay up to the date on which the assignment was offered.

4. [7]

   Secondly, the solicitor explained part of the subsequent delay by reference to his own ill-health. However, the responsibility for timely filing of a notice of appeal lay with the firm, Abbas & Co Lawyers, and not with the individual solicitor required by that firm to have carriage of the matter.

5. [8]

   Thirdly, it was, apparently, a condition of Legal Aid that an advice on merits be obtained from counsel. However, there was no explanation as to why funding for counsel to provide a merit advice was not approved until 4 May 2023. Nor was there a satisfactory explanation for the further period of almost five months before the notice of appeal was filed.

6. [9]

   There is no suggestion that the applicant has been personally responsible for any part of the delay, but he would potentially be a victim of the delay were the application to succeed and his sentence to be reduced to a date shortly after, or even prior to the judgment, as has occurred on occasion. He has already completed four of the five years of the non-parole period imposed on him. In the present case, the proper course is to order that leave be granted to file the notice of appeal on 31 July 2023, being the date on which it was filed.

Grounds of appeal

1. [10]

   The proposed grounds of appeal, in the event that leave be granted, were as follows:

   1. (1)

      His Honour erred in his assessment of the objective seriousness of the offence.

   2. (2)

      His Honour erred in failing to make findings in relation to the applicant’s remorse; risk of reoffending; and prospects of rehabilitation.

   3. (3)

      The sentence imposed is manifestly excessive.

2. [11]

   The sentencing judge supported his orders with a carefully structured and comprehensive statement of his reasons. As they are publicly available on Caselaw, there is no need to repeat or summarise them, except to the extent necessary to address the proposed grounds.

3. [12]

   Because the starting point for the sentence was a period of 10 years’ imprisonment, and because it is the first custodial sentence imposed on the applicant, it is appropriate to grant leave to appeal. However, for the reasons set out below, the appeal must be dismissed.

Ground 1: assessment of objective seriousness

1. [13]

   The act of intercourse which was the subject of the charge took place in the early hours of Sunday, 27 October 2019. The victim, then 22 years of age, had been consuming significant quantities of alcohol, including beer and vodka, since about 2pm on the Saturday afternoon. By 6pm or 7pm she was already intoxicated. Between 10.30pm and 1am she, with a group of friends, continued to drink at the Beresford Hotel at Surry Hills, from which they walked to the Courthouse Hotel at Taylor Square. At that time she was described as “really drunk”, swaying on the dance floor and constantly sitting down, standing up and trying to dance but being too unsteady on her feet.

2. [14]

   At around 1.30am, the victim left the Courthouse Hotel and obtained food at a nearby takeaway shop. CCTV footage showed her sitting on a paved ledge on Taylor Square from 1.35am to 2.17am. She could be seen at one point eating food and at other points speaking on her mobile phone. Between 1.45am and 2am she had a lengthy telephone conversation with a friend during which she sounded “really intoxicated”, was slurring her words and at one point vomited in some bushes. She declined her friend’s offer to pick her up.

3. [15]

   The victim then had a further conversation via Facebook with a friend in the USA, during which time the applicant approached her and spoke to her. The phone call dropped out at 2.09am.

4. [16]

   CCTV footage recorded the victim in Oxford Street at 2.18am leaning against a wall and speaking on the phone. At 2.21am she began to sit on the ground and in doing so fell forward onto her knees, before sitting on a step. At 2.27am the applicant walked past the victim, and then returned and sat down beside her while the victim continued to talk on her mobile phone. At about 2.30am the applicant got up and walked away, then approached her and again sat close beside her. At 2.33am the applicant stood up and used his arm to assist the victim to her feet and they walked in a northerly direction along Oxford Street. They proceeded along Crown Street and Palmer Street. The statement of agreed facts continued at par 20:

5. [17]

   The applicant walked the victim around a corner into Turner Lane, Woolloomooloo, put the victim on the ground in the gutter and removed her underwear. He then shifted her body so that she was lying flat, took off his pants and put his penis in her mouth. (This constituted the first offence of intercourse without consent which was dealt with on a Form 1.) The applicant then had penile/vaginal intercourse with the victim. He lifted her left leg over her head, which she found very uncomfortable and placed the full weight of his body on her. She stated that she was frozen, could not move, was scared and was in pain. At some point the applicant removed the victim’s tampon, which was later found in Turner Lane. The applicant’s conduct caused her pain not only in her vagina, but also her lower back. She thought that it went on “for a long time” perhaps “about 10-15 minutes”, but the CCTV footage showed that they were in the laneway for approximately 30 minutes. The statement of agreed facts continued at par 31:

6. [18]

   The judge expressly accepted the prosecutor’s submissions, that “the principal offence falls above midrange of objective seriousness for the reasons that she has advanced”: at [220]. The judge rejected a submission on behalf of the applicant that the offence fell “well below the middle range of objective seriousness”: at [208]. He accepted that there were gradations of seriousness depending on the state of knowledge of the offender and that recklessness as to consent, which was the agreed basis upon which the applicant was to be sentenced, fell below a consciousness of lack of consent but perhaps above a belief as to consent, for which there were no reasonable grounds: at [210]. The judge’s assessment continued:

7. [19]

   Returning to the finding at [220] noted above, the judge rejected the submission made on the applicant’s behalf that his behaviour was “opportunistic” and continued:

8. [20]

   There is no doubt that, in these passages, the judge placed significant weight upon the state of mind of the applicant. However, the submissions on behalf of the applicant in this Court went little further than to assert that recklessness, not being the highest of the three levels of understanding of lack of consent, could not support a finding of moral culpability above the midrange of objective seriousness. The answer given by the respondent, correctly, was two-fold, namely (i) that the applicant’s state of mind was only one factor in assessing objective seriousness and (ii) there is no reason in principle why recklessness could not support a finding of objective seriousness above the midrange.

9. [21]

   As a matter of long accepted principle, the objective seriousness of particular offending is an essentially evaluative and impressionistic judgment with which an appeal court will not readily interfere. That proposition was recently restated in BM v R. [2] However, I do not agree with the statement in that case that an appellate court “should not intervene unless specific error of the sort referred to in House v The King” has been established. Neither Mulato v R [3] nor R v Ferguson, [4] referred to in BM, is authority for that proposition. Indeed, in Mulato at [37], Spigelman CJ considered whether the particular characterisation of the offence by the sentencing judge was “open”. That language reflects, not the passage in House v The King [5] which identified specific errors, but rather the passage which identified a possible error-inferred-from-outcome basis of intervention. In that respect, it more closely resembles the third ground relied upon here, namely that the sentence was manifestly excessive. However, accepting that error of either kind identified in House may be available, no such error is apparent in the present case. The finding as to objective seriousness was open to the sentencing judge, and his reasons for making the finding revealed no specific error. Ground 1 should be rejected.

Ground 2 – failing to make findings as to remorse; risk of reoffending; and prospects of rehabilitation

1. [22]

   There was a degree of confusion in the applicant’s submissions with respect to ground 2. The ground itself was formulated as the failure to make findings with respect to the three matters as to which, it was implied, findings were required in the proper exercise of the sentencing function. However, in the written submissions, the ground was formulated, at least in part, as a failure to respond to the applicant’s submissions with respect to those matters. Those submissions were then repeated as a basis for this Court to interfere with the sentence.

2. [23]

   As to the first approach, it is undoubtedly true that the three matters are identified in s 21A(3) as “mitigating factors, which are to be taken into account in determining a sentence”, namely that the offender is “unlikely to reoffend” (par (g)), that the offender has “good prospects of rehabilitation” (par (h)), and that the offender has shown “remorse” (par (i)). The applicant submitted that the three factors were interconnected and might be dealt with “compendiously”. However, it should be noted that remorse is only a mitigating factor for the purposes of s 21A(3)(i) if “the offender has provided evidence that he or she has accepted responsibility for his or her actions” and “has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage”.

3. [24]

   The factors identified in s 21A may properly be described as material, and possibly mandatory, considerations so that error might be demonstrated if they were disregarded. However, as s 21A(1) expressly states, it is only those factors that are “relevant and known to the court” which are required to be taken into account. The onus is on the offender to establish mitigating factors, and it will rarely be open for the offender to complain of a failure on the part of a sentencing judge to make a favourable finding. That is for three reasons. First, each of the concepts is imprecise and involves matters of degree. Secondly, two are forward-looking and can usually be speculative at best. The third (remorse) is often difficult to establish because offenders usually regret past conduct once penal consequences are, or are about to be, visited upon them, a matter which may be difficult to distinguish from remorse. Thirdly, much will depend upon the evidence. There will rarely be error on the part of the sentencing judge in failing to make a favourable finding on such matters if the offender has not given evidence at the sentencing hearing. [6]

4. [25]

   In Ali v R, [7] Johnson J noted, with respect to a similar assertion of error in failing to make positive findings that the offender was unlikely to reoffend and had good prospects of rehabilitation, that the onus lay on the offender to demonstrate a mitigating factor of that kind. He continued, referring to R v MAK, [8] that this Court had stated that “remorse will be a major factor in determining whether an offender is unlikely to reoffend and had good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made”. [9]

5. [26]

   As will appear, the sentencing judge was not satisfied as to “true remorse”. There was, therefore, no basis for this Court to intervene with respect to the complaint of failure to make findings.

6. [27]

   The alternative proposition, that the judge did not address the applicant’s case on remorse, was untenable. The judge expressly referred to character references (i) from the applicant’s wife stating that the applicant had “expressed his regret for his actions and the impact it has caused upon their family”, and asserting that “he understands the nature of his actions and accepts responsibility for what he has done and is taking positive steps to address his offending” and that he had “confided in her his remorse”: at [158]; (ii) from the applicant’s mother saying that he had expressed “sincere remorse” and guilt on numerous occasions; and (iii) from his cousins stating that they believed him to be “genuinely remorseful”: at [173]. The judge also referred to a psychologist’s report noting that the applicant had expressed “regret and remorse”: at [169].

7. [28]

   In discussing submissions made on behalf of the prosecution, the judge noted that “the reports provided on behalf of the offender and character material depended in large measure upon the truth and accuracy of the attributions upon which the opinions were offered” which included “past life history and demographics generally and explanations attributed to the offender regarding the misconduct upon which the prosecution was brought”: at [194]. The judge accepted matters relating to “demography”, including the difficulties the applicant had faced in Kuwait and Iraq but continued:

8. [29]

   The reference to the guidance provided by Wilson J was to the following passage in Imbornone:

9. [30]

   Against that background, the statement that he had taken the guidance offered by Wilson J clearly implied that the judge was not affirmatively satisfied by the untested reports of statements made out of court to third parties. That implication is supported by describing the prosecutor’s submissions with respect to special circumstances as, “reminding me that lack of remorse and poor prospects of rehabilitation require increased weight to be attributed to the need for protection, and militate against finding of special circumstances”: at [217]. Clearly, the judge did not accept the statements of remorse attributed to the applicant in character references and the psychologist’s report.

10. [31]

    It is also apparent that the judge was not satisfied of the applicant’s good prospects of rehabilitation, whatever that might involve. Nevertheless, the judge found:

11. [32]

    As to the likelihood of reoffending, the judge referred to a passage in a report prepared by a consulting psychiatrist, Dr Furst, noting that it dealt with “the risk of reoffending using the Static-99R coding form”, which revealed that the applicant was “said to be at the average risk of re-offending compared with other male sex offenders”: at [151]. There was no suggestion that the judge did not accept that finding, but it can have provided no significant comfort to the applicant.

12. [33]

    In short, the judge did not fail to have regard to the material put forward by the applicant in relation to these factors: rather, he did not make findings favourable to the applicant, a result which was not open to criticism. Ground 2 must be rejected.

Ground 3 – manifest excess

1. [34]

   The applicant’s written submissions relied on three matters in support of a challenge to the length of the sentence. These were:

2. [35]

   The first matter can be dismissed: grounds 1 and 2 have been rejected.

3. [36]

   As to the second matter, the complaint was that the judge had given “a heightened level of importance” to his view that the applicant had “exploited the victim’s vulnerability”, so as to displace the agreed fact that the applicant had been reckless as to whether or not she was consenting.

4. [37]

   The formulation of this challenge was unpromising, an impression confirmed by further examination. The applicant did not challenge the finding as to the victim’s vulnerability, nor that it was an aggravating factor upon which the judge was entitled to rely. The fact that the judge referred to this factor on four occasions did not demonstrate “overemphasis”, unless the occasions were inappropriate.

5. [38]

   The first passage was with respect to an opinion proffered by Dr Furst in his report that:

6. [39]

   The second passage relied upon as demonstrating overemphasis involved a rejection of the proposition that recklessness as to consent only arose after the assault commenced, so that “this encounter should be seen to be a shared moment up until … the point of her unbearable discomfort”: at [221]. Rather, the judge found that the applicant had selected “this vulnerable young woman for sexual exploitation” at a time when he saw her, clearly inebriated, at Taylor Square and, purporting to assist her, walked her down Oxford Street, into Palmer Street and then into a dark laneway. The finding that he was reckless as to her willingness to engage in sexual intercourse commenced at an early point in time, when he “selected” her for sexual exploitation. The use of the language in that context was entirely apt.

7. [40]

   Thirdly, in rejecting a submission that the applicant’s moral culpability should follow from his personal circumstances which evoked a measure of sympathy, the judge stated:

8. [41]

   Fourthly and finally, reliance was placed upon the following passage in the judgment:

9. [42]

   The reference to s 44 of the Sentencing Procedure Act identified the obligation to impose a sentence involving a non-parole period and a balance of term which “must not exceed one-third of the non-parole period” unless the Court decides there are special circumstances for it being more: s 44(2). Given that it would be inappropriate to increase the term of the sentence to allow for a longer period of supervision, a finding of special circumstances, which was given significant effect in the present case, reduced the period of mandatory custody. In other words, this observation in relation to exploitation of young women in vulnerable circumstances was made in a context which had a favourable consequence for the applicant.

10. [43]

    The applicant took issue with the suggestion that he had a “propensity” to exploit vulnerable young woman, based on an act of indecency of which he had been convicted in December 2017, together with the charge the subject of the sentencing hearing. The criticism was, however, without substance. The term “propensity” was qualified by the words “at least to some extent in the two episodes of offending” and was not some form of aggravating factor. Further, the context suggested a concern the sentencing judge held as to the possibility of reoffending. Neither of these matters warranted criticism.

11. [44]

    It follows that the second basis of challenging the length of the sentence lacks substance.

12. [45]

    The third matter relied upon the Judicial Information and Research System (JIRS) statistics prepared by the Judicial Commission with respect to offences under s 61I of the Crimes Act. The criteria relied upon involved one individual, one offence only, a Form 1 matter, priors of a different type and a guilty plea. The period was from 24 September 2018 to 30 September 2022. There were a total of 12 cases, of which only one involved a non-parole period in excess of 3 years 6 months, namely one of 4 years 6 months. With respect to the term of the sentence involving a principal offence only, and otherwise identical characteristics, the higher sentence was a term of 6 years imprisonment, again for one offence. It will be necessary to return to these statistics after considering the comparable cases.

13. [46]

    The applicant also supplied the Court with brief summaries of 124 cases of sexual intercourse without consent where the victim was aged 16 years or older under s 61I of the Crimes Act. The record commenced in 1991, long before the standard non-parole period of 7 years for such offences was enacted in February 2003. The applicant’s counsel submitted that the schedule suggested that “the sentence imposed is at the higher end of the range for offences of its type”. However, as the respondent submitted, that may be so, but it goes little if any way to establishing manifest excess.

14. [47]

    The respondent relied upon three decisions in this Court, two of which the sentencing judge had been taken to in the course of submissions. In each case a challenge to the severity of the sentence was rejected by this Court.

15. [48]

    The first, Nand v R, [10] involved an incident at Newtown railway station in which the offender had oral and vaginal intercourse with an 18-year-old, heavily intoxicated, woman seated on a bench at the station. Charged with two offences under s 61I of the Crimes Act, he was sentenced for the first to imprisonment for 10 years 6 months with a non-parole period of 7 years 6 months, and on the second to a similar term with a non-parole period of 7 years. The total sentence imposed was 11 years with a non-parole period of 7 years 6 months, there being no accumulation of the non-parole periods. Although manifest excess was not a ground of appeal, Schmidt J (with the agreement of Gleeson JA and Bellew J) stated:

16. [49]

    The sentences in Nand were longer than the pre-discount starting point adopted by Bennett DCJ, although Mr Nand was on parole at the time of the offending and had a significant criminal record.

17. [50]

    In the second case, Rahman v R [11] this Court held that a sentence of imprisonment for 6 years with a non-parole period of 4 years and 6 months, including a 25% discount based on an early plea of guilty, was not unreasonable or plainly unjust.

18. [51]

    Mr Rahman, then 36 years of age, and his younger victim then 24 years of age, worked at a restaurant in Sydney. They had been drinking with fellow workers after their shift. At about 3.30am the offender pressured the victim to go back with him to his communal house in Strathfield. During the night, the victim woke to find the offender taking her clothes off and, while she was partly asleep and in a dazed and confused state, he had intercourse with her. The penile/vaginal intercourse was the subject of the charge, with an episode of cunnilingus taken into account on a Form 1.

19. [52]

    Beech-Jones J in Rahman had regard to a number of earlier decisions, including Nand (noted above) and Ali v R. [12] Mr Ali was an Uber driver who had sexual intercourse with a passenger. The victim was an 18-year-old woman who was significantly intoxicated, was drifting in and out of sleep during the taxi trip and at one stage vomited out of the window, before being driven to a back street. The offender had stopped the vehicle, moved the victim into the back seat, removed her underclothes including a tampon and had vaginal sexual intercourse until ejaculation, despite the clearly expressed lack of consent on the part of the victim. The offender was 22 years of age and had no prior criminal history. Having been convicted by a jury, he was sentenced by the trial judge to a term of 10 years and 8 months, with a non-parole period of 8 years, a sentence which was found to be subject to “Muldrock error”, that is, giving undue weight to the standard non-parole period. The sentencing judge had assessed the objective seriousness of the offending as above the midrange, a finding with which this Court did not interfere.

20. [53]

    Two aspects of Ali are significant. First, there had been an appeal in 2010, [13] before the decision of the High Court in Muldrock v The Queen [14] changed the approach to standard non-parole periods. In 2010, this Court upheld the sentence and dismissed a challenge by Mr Ali. Secondly, in 2014 the Court was required to revisit the sentencing as a result of the decision of the High Court in Muldrock and a concession by the Director that an incorrect approach had been adopted by the sentencing judge with respect to the standard non-parole period. This Court then determined that a lesser sentence was warranted, namely a sentence of 8 years 8 months on the s 61I offence, with a non-parole period of 6 years and 6 months. However, the Court was able, in 2014, to take into account events subsequent to the original sentencing. These proved decisive in the reduction in sentence, as explained by Leeming JA:

21. [54]

    In Naveed v R, [15] this Court dealt with an appeal from a sentence imposed on another Uber driver who took advantage of the intoxicated state of a passenger to have vaginal intercourse with her on the back seat of the vehicle. The sentencing judge found that the conduct was in the “upper or top band of the middle range” of objective seriousness, a finding with which this Court did not interfere. [16] On appeal, the sentence of imprisonment for 9 years with a non-parole period of 6 years and 4 months was found not to be manifestly excessive.

22. [55]

    In Rahman, after referring to Ali, Nand and Naveed, together with a fourth case, Rajendran v R [17] in which the Court had dismissed an appeal against a sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years, Beech-Jones J observed:

23. [56]

    The reference to “unifying principle” is taken from the observation of the High Court in Wong v The Queen [18] to the effect that a review of sentences imposed in other cases is “useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal”.

24. [57]

    Kirby J, a member of the majority in Wong, quoting Mason J in Lowe v The Queen, [19] noted that the principle of consistency in sentencing and the need to limit disparity and inconsistency reflects “a fundamental element in any rational and fair system of criminal justice”. [20] However, the difficulty is to identify when interference with the discretionary judgment exercised by a sentencing judge is appropriate and when it is not. The analysis of comparable cases in Rahman, and that set out above, appear to demonstrate a serious weakness in the JIRS statistics relied upon by the applicant. The “range” which may be derived from the statistics provided indicates that the filters imposed have excluded a number of cases which provide a reasonable basis of comparison. Once the statistics are put to one side, there is no justification for interfering with the sentence imposed in the District Court. Ground 3 must be rejected.

Orders

1. [58]

   In these circumstances, the Court should make the following orders:

   1. (1)

      Grant leave to the applicant to rely upon the notice of appeal filed on 31 July 2023.

   2. (2)

      Grant the applicant leave to appeal against the sentence imposed on him in the District Court on 8 October 2021.

   3. (3)

      Dismiss the appeal.

2. [59]

   SWEENEY J: I agree with Basten AJA.