Citation: Gazi Comert v R [2004] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 6 May 2004
Judges: Sully J; Hidden J; Hislop J
Background
The appellant had been tried in the District Court at Sydney in October 2002 on a charge of aggravated sexual assault against his wife, contrary to section 61J(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years imprisonment. The jury returned a guilty verdict on 1 November 2002. The offence involved the appellant physically overpowering his wife in their home, dragging her to the bedroom, and forcing sexual intercourse upon her despite her protests, causing multiple documented injuries.
On 21 February 2003, the sentencing judge imposed a term of 8 years imprisonment with a non-parole period of 6 years. The appellant sought to challenge both the conviction and the sentence, although legal aid was granted only in respect of the sentence appeal. He represented himself on the conviction appeal and was represented by Senior Counsel on the sentence application.
Legal Issues
- Whether any of the four grounds raised by the appellant established error in the conviction.
- Whether the sentencing judge took into account an irrelevant matter by treating the fact that the offence occurred in the complainant's home as an additional aggravating feature.
- Whether the sentence of 8 years with a 6-year non-parole period was manifestly excessive.
Decision
Conviction appeal: The Court unanimously dismissed the appeal against conviction. The four grounds raised by the appellant were each considered and rejected. The first ground, which questioned the complainant's pregnancy and the identity of the father, had never been put to the complainant in cross-examination at trial and was not made out. The second ground, alleging that the complainant had lied and should have undergone a psychological assessment, was rejected because the complainant had been vigorously cross-examined on credit and no request for such an assessment had ever been made before or during the trial. The third ground, alleging a political conspiracy by Turkish nationals against the appellant as a Kurdish man, was found to be entirely without evidentiary support. The fourth ground, concerning alleged misrepresentation by his legal team, was also rejected.
Sentence appeal: The Court divided. Sully J would have dismissed the sentence appeal as well, finding no error in the sentencing judge's reasoning and concluding that the sentence was not manifestly excessive given the objective seriousness of the offence and the appellant's guarded rehabilitation prospects. Hidden and Hislop JJ disagreed. They found that the sentencing judge had fallen into error by treating the fact that the assault occurred in the complainant's home as an additional aggravating feature. The majority held this was wrong in principle: while the location of a home might be an aggravating factor where an offender is an intruder, it cannot increase the seriousness of a sexual assault committed by a husband in the matrimonial home. The majority was also independently satisfied that the sentence was manifestly excessive when weighed against the appellant's otherwise favourable subjective circumstances, notwithstanding the history of violence in the marriage and the absence of remorse.
By majority, the sentence was reduced to 6 years imprisonment with a non-parole period of 4.5 years. No special circumstances warranting a departure from the standard proportional relationship between head sentence and non-parole period were found to exist.
Orders Made
- Appeal against conviction dismissed.
- Leave to appeal against sentence granted (by majority).
- Appeal against sentence allowed (by majority).
- Sentence passed in the District Court quashed.
- In lieu, sentence of 6 years imprisonment from 7 February 2003, with a non-parole period of 4.5 years, with eligibility for release on parole on 6 August 2007.
Key Takeaways
- The Court of Criminal Appeal confirmed that where an unrepresented appellant raises factual grounds of appeal that were never put to the complainant at trial or argued before the sentencing court, those grounds will not succeed on appeal.
- A sentencing court commits error by treating the matrimonial home as an aggravating feature in a spousal sexual assault: unlike the position where an offender is an intruder, the location of the home does not make such an offence more serious in that context.
- In dismissing the conviction grounds, the Court emphasised the importance of the jury having had full opportunity to assess the complainant's credibility through extensive cross-examination, and that the jury's verdict necessarily reflected an acceptance of her account.
- No comparable sentencing cases were available to the Court, and Judicial Commission sentencing statistics were of no assistance given the small sample size, illustrating the difficulty of calibrating sentences in this area at the time.
- Where a sentencing judge takes into account an irrelevant aggravating factor, and the resulting sentence is also independently considered manifestly excessive, the appellate court will re-exercise the sentencing discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual assault, maximum 20 years imprisonment)
Cases cited: No cases were cited in the provided text of the judgment.