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Court of Criminal Appeal 2 September 2020

Aliabadi v R

[2020] NSWCCA 224

Sexual offences

Citation: Aliabadi v R [2020] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 2 September 2020
Judge(s): Hoeben CJ at CL, Davies J, Adamson J (judgment delivered by Adamson J)

Background

The applicant was convicted after a jury trial on two counts of indecent assault and one count of sexual intercourse without consent. The offences arose from a single incident on a first date at the complainant's home in December 2017, during which the applicant digitally penetrated the complainant and committed two acts of indecent assault on her breasts and against her hand, despite repeated protests.

The sentencing judge imposed an aggregate sentence of 4 years and 3 months' imprisonment, with a non-parole period of 2 years and 10 months. The applicant then sought leave to appeal against the sentence on the basis that the sentencing judge had wrongly assessed the objective seriousness of each count and failed to give adequate reasons for the assessment of the most serious count.

At the sentence hearing, the applicant's trial counsel had submitted that the sexual intercourse count was "just below mid-range" in objective seriousness, and that the two indecency counts were below mid-range. The sentencing judge's findings accorded precisely with those submissions.

  • Whether the sentencing judge erred in assessing the objective seriousness of the sexual intercourse count (count 3) as "just below mid-range"
  • Whether the sentencing judge erred in assessing the objective seriousness of the two indecent assault counts (counts 1 and 2)
  • Whether the sentencing judge gave adequate reasons for the assessment of objective seriousness in relation to count 3

Decision

Grounds 1 and 2: Objective seriousness. The Court of Criminal Appeal confirmed that an assessment of objective seriousness by a sentencing judge is reviewable only on the principles in House v The King (1936) 55 CLR 499. The applicant's new counsel sought to argue on appeal that count 3 should have been placed at the lower end of the scale rather than just below mid-range, but this directly contradicted the position taken by the applicant's own counsel at the sentence hearing. Adamson J noted that an appeal is not an opportunity to depart from a submission that was deliberately put below.

Because the sentencing judge's assessments of objective seriousness on all three counts matched exactly what the applicant's counsel had conceded at sentencing, no House v The King error could be demonstrated. The same reasoning applied to grounds 1 and 2, and leave was refused on both.

Ground 3: Adequacy of reasons. The Court found that the sentencing judge's reasons, although brief and delivered ex tempore (that is, given orally without prior written preparation), were sufficient to expose the reasoning behind each assessment. The reasons directly followed the findings of fact, addressed the nature, duration, and location of each offence, and reached conclusions that were coherent in light of those findings. No inadequacy was established.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A party on a sentencing appeal cannot resile from, or seek to improve upon, a submission on objective seriousness that their counsel deliberately made at the sentence hearing below.
  • Assessing the objective seriousness of an offence is "quintessentially" a matter for the sentencing judge, and appellate courts will only intervene where a House v The King error is shown, such as a mistake of law, an error of fact, or a decision that is unreasonable or plainly unjust.
  • The restraint applied to appellate review of objective seriousness is heightened where the sentence follows a jury trial, as the sentencing judge must find facts consistently with the jury's verdicts.
  • Brief, ex tempore reasons for an assessment of objective seriousness are not necessarily inadequate, provided they expose the reasons for the assessment with sufficient clarity.
  • Where a sentencing judge's findings accord with submissions made by the applicant, the applicant faces a particularly high threshold in demonstrating appealable error.

Legislation and Cases Referenced

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Mulato v R [2006] NSWCCA 282
- Baines v R [2016] NSWCCA 132
- R v Isaacs (1997) 41 NSWLR 374
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Legislation: No specific legislation was cited in the provided judgment text.