Citation: Regina v Dayeian [2000] NSWCCA 348
Court: New South Wales Court of Criminal Appeal
Date: 29 August 2000
Judge(s): Mason P, Levine J, Greg James J
Background
The appellant was tried in the Campbelltown District Court on one count of sexual intercourse without consent under s 61I of the Crimes Act 1900 and three counts of sexual intercourse without consent in circumstances of aggravation under s 61J. The complainant was his wife. The four offences involved digital penetration occurring over approximately five months between September 1997 and March 1998.
The jury convicted the appellant on all four counts. On the three aggravated counts, the jury rejected the Crown's case on the circumstances of aggravation but returned guilty verdicts on the lesser alternative offence under s 61I. Each count carried a maximum of fourteen years' penal servitude.
At sentencing, the trial judge imposed a minimum term of two years plus an additional term of two years in respect of the fourth count, with fixed terms of twelve months (concurrent) for each of the other three counts. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by selecting the fourth count as the basis for the principal sentence without expressly explaining that choice
- Whether the sentencing judge failed to take into account the full range of matters said to constitute "special circumstances," which under the then-applicable sentencing regime could justify a longer additional (non-parole) term relative to the minimum term
- Whether the overall sentence was manifestly excessive and outside an appropriate range
Decision
The Court of Criminal Appeal found no error in the sentencing judge's selection of the fourth count as the vehicle for the principal sentence. The judge presided over the trial, sentenced the appellant for a series of four separate offences committed over five months, and chose the most recent offence in the series. The absence of explicit reasoning for that selection did not expose any error in procedure or principle.
On the question of special circumstances, the Court accepted that the sentencing judge's remarks were brief. However, the Court read those brief remarks in light of the fuller discussion earlier in the sentencing remarks, which addressed the appellant's alcohol dependence disorder, adjustment disorder, possible suicidal tendencies, and personality difficulties. The Court was satisfied that the judge had turned his mind to the full range of subjective matters raised on behalf of the appellant.
The Court affirmed that sexual intercourse without consent has consistently been characterised in the case law as a serious act of violence and humiliation. The sentencing judge properly rejected a submission that "exceptional circumstances" existed that might have justified a non-custodial sentence. The Court found the sentence was not manifestly excessive and that no basis for appellate intervention had been established.
Leave to appeal was granted, given the appellate history of the matter and what Levine J described as the unusual facts attending the verdicts, but the appeal was dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge dealing with multiple counts need not expressly justify the selection of a particular count as the vehicle for the principal sentence, provided the overall approach reflects the totality of the criminality involved.
- Brief remarks on special circumstances do not necessarily expose error where the sentencing remarks, read as a whole, demonstrate the judge engaged with the relevant subjective material.
- The Court of Criminal Appeal confirmed, consistent with prior authority, that offences of sexual intercourse without consent are serious acts of violence and humiliation, and that characterisation informs the objective seriousness of sentencing.
- No error was established in rejecting a submission that "exceptional circumstances" existed so as to warrant a non-custodial outcome for four convictions of this nature.
- In dismissing the appeal, the Court affirmed that the fact marriage existed between the offender and the complainant did not alter the applicable sentencing framework under s 61I.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I and 61J
Cases
- Regina v Hartikainen (unreported, Court of Criminal Appeal, 8 June 1993)
- Regina v May [1999] NSWCCA 40
- Regina v Crisologo (1997) 99 ACR 178