R v Md Kowsar ALI [2008] NSWDC 319

New South Wales District Court

CITATION: R v Md Kowsar ALI [2008] NSWDC 319 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 September 2008 - 11 September 2008 16 September 2008 -17 September 2008

JUDGMENT DATE: 14 November 2008

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Sentenced to imprisonment with an overall sentence consisting of a non-parole period of eight years and a head sentence of ten years and eight months.

CATCHWORDS: Criminal law - Sentence - Indecent assault - Sexual intercourse without consent - Vulnerable victim - Taxi Driver.

PARTIES: The Crown Md Kowsar Ali

FILE NUMBER(S): DC 2008/11/0298

COUNSEL: S Huggett (Crown) L McSpedden (Defendant)

SOLICITORS: NSW DPP McGowan Lawyers (Defendant)

SENTENCE

1 HIS HONOUR: On 3 November 2007 Ms Jessica Loiterton went out socialising with some of her friends. She drank more than she should have and her friends decided to send her home in a taxi, giving her money for that purpose. The taxi driver who picked her up was the offender. He took advantage of her extremely vulnerable state by indecently assaulting and then raping her. He now stands to be sentenced for those offences.

2 When Ms Loiterton got into the taxi she was significantly intoxicated. She had already vomited and did so once more whilst in the taxi. The offender well knew the state Ms Loiterton was in, seeing her vomit out of his taxi window. She was drifting in and out of sleep. She did recall however that at one stage the offender began to touch her. She said that he reached up her sleeve and moved his hand down on to her breasts. Ms Loiterton had done nothing to invite such attention and conveyed her lack of consent by pulling away from him and saying, "no, don't." That assault upon Ms Loiterton is the first of the counts in the indictment, an offence of indecent assault carrying a maximum penalty of five years imprisonment.