Citation: Alseedi v R [2009] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 16 July 2009
Judge(s): Giles JA; Hidden J; McCallum J
Background
The appellant was convicted by a jury in the District Court on two counts of indecent assault and one count of sexual intercourse without consent. The offences arose from an incident in December 2006 at a Sydney supermarket, where the appellant, a loss prevention officer, was alone with the complainant, who was the store manager, in an upstairs office. The complainant gave evidence that the appellant forced himself upon her; the appellant maintained that the complainant had initiated and encouraged what occurred.
Following conviction, the District Court sentenced the appellant to an overall non-parole period of five years and a total term of eight years. The sentencing judge declined to find good prospects of rehabilitation, citing primarily the appellant's continued maintenance of innocence.
The appellant appealed against both his conviction (on the basis that the jury's verdict was unreasonable) and his sentence (on the basis that it was excessive).
Legal Issues
- Whether the jury's verdict was unreasonable having regard to the evidence, such that the convictions could not stand
- Whether the sentencing judge erred in declining to find good prospects of rehabilitation solely on the basis that the appellant continued to maintain his innocence, without sufficient regard to other favourable matters
Decision
The Court of Criminal Appeal dismissed the conviction appeal. On the evidence before the jury, it was open to the jury to be satisfied of the appellant's guilt beyond reasonable doubt. The Court noted this raised no question of principle.
On the sentence appeal, the Court found error in the sentencing judge's approach to rehabilitation. The sentencing judge had earlier identified a number of matters favouring the view that the appellant was unlikely to re-offend, but at the point of addressing rehabilitation, those matters were not acknowledged. The only stated reason for declining to find good prospects of rehabilitation was the appellant's continued protestation of innocence.
The Court held that maintaining innocence is far from necessarily inconsistent with good prospects of rehabilitation, and that offenders convicted after a trial are not automatically denied a finding of good prospects of rehabilitation simply because they do not then acknowledge guilt. The sentencing judge had given that single consideration undue weight without proper regard to the other favourable matters identified earlier in the remarks on sentence.
In light of this error, the Court resentenced the appellant in relation to Count 3 (sexual intercourse without consent). The sentence imposed on Count 3 was reduced, bringing the overall non-parole period down to four years and the total term to seven years.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal allowed
- Sentences on Counts 1 and 2 upheld
- Sentence on Count 3 quashed and replaced with imprisonment comprising a non-parole period of 4 years commencing 11 August 2008 and expiring 10 August 2012, and a balance of term of 3 years commencing 11 August 2012 and expiring 10 August 2015
Key Takeaways
- A continued maintenance of innocence following conviction does not, without more, justify a finding that an offender lacks good prospects of rehabilitation. Rehabilitation can occur without confession.
- Where a sentencing court identifies multiple favourable matters bearing on the likelihood of re-offending, it must take those matters into proper account when assessing prospects of rehabilitation, rather than relying exclusively on one adverse factor.
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that no question of principle arose and that the verdict was one open to the jury on the evidence, consistent with the well-established standard for unreasonable verdict appeals.
- The Court of Criminal Appeal identified legal error where the sentencing judge gave a single consideration undue weight without proper regard to other relevant matters, warranting resentencing rather than merely a reduction in the existing sentence.
- Sufficient evidence existed to sustain all three counts at trial, and the appellate court did not disturb the conviction on any of them.
Legislation and Cases Referenced
Cases cited:
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- Zaphir v R [2009] NSWCCA 124
Legislation: No specific legislation was identified in the material provided.