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Court of Criminal Appeal 24 September 2021

Khorami v R; R v Khorami

[2021] NSWCCA 228

Sexual offences
CRIME APPEAL AGAINST CONVICTION CONSIDERATION OF TOTALITY OF EVIDENCE CONVICTION APPEAL DISMISSED CRIME CROWN SENTENCE APPEAL OFFENCES COMMITTED OVER SIX

Citation: Khorami v R; R v Khorami [2021] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 24 September 2021
Judges: Bell P; Johnson J; Cavanagh J

Background

The applicant was employed as a sleep technician at a medical research institute in Glebe. His role involved monitoring patients participating in overnight sleep studies, which were recorded on CCTV. Between July and August 2018, over a period of approximately six weeks, he committed sexual offences against five female patients aged between 16 and 29 while they were under his care during those studies.

A jury in the District Court found him guilty of 19 counts of aggravated indecent assault, one count of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault), and two counts of committing an aggravated act of indecency. He was sentenced to an aggregate term of six years' imprisonment with a non-parole period of three years and nine months.

Two appeals came before the Court of Criminal Appeal. The applicant sought leave to appeal against his conviction on 10 of the 22 counts, arguing the CCTV evidence was insufficient to support those verdicts. The Crown separately appealed the aggregate sentence as manifestly inadequate.

  • Whether guilty verdicts on 10 of 22 counts were unreasonable or could not be supported on the evidence, given the limitations of the CCTV footage
  • Whether the trial judge erred in her assessment of the objective seriousness of six offences (Crown appeal, ground 1)
  • Whether the trial judge erred by failing to provide adequate reasons for how the applicant's prior good character was taken into account (Crown appeal, ground 2)
  • Whether the aggregate sentence of six years was manifestly inadequate (Crown appeal, ground 3)

Decision

Conviction appeal (unanimous): The Court granted leave to appeal but dismissed the conviction appeal. After independently reviewing the CCTV footage and the full body of evidence, all three judges were satisfied that the jury was well entitled to find the applicant guilty beyond reasonable doubt on each of the 10 challenged counts. Critically, the trial proceeded on the basis that each complainant's evidence was admissible as tendency evidence in relation to every other count, and that tendency evidence played a significant role alongside the CCTV material in supporting the verdicts.

Objective seriousness (ground 1, majority): Bell P and Cavanagh J upheld the Crown's argument in part. They agreed with Johnson J that the trial judge erred in characterising count 21 (administering an intoxicating substance with intent) as falling "below the mid-range of objective seriousness but not appreciably so," finding that the significantly aggravated circumstances warranted a higher characterisation. However, Bell P and Cavanagh J rejected the Crown's challenge to the characterisation of the remaining five counts as "relatively low level," finding that assessment was open to the trial judge on the evidence. Johnson J dissented on this aspect, taking the view that the abuse of authority and breach of trust involved meant even those five counts were not properly described as relatively low level.

Good character reasons (ground 2, unanimous): All three judges agreed the trial judge did not err, though a fuller explanation of the weight given to prior good character may have been preferable. The absence of detailed reasons did not constitute appellate error.

Manifest inadequacy (ground 3, majority): Bell P and Cavanagh J declined to find the sentence manifestly inadequate. While both acknowledged the sentence was lenient, they found it fell short of being unreasonable or plainly unjust. They also took into account the "extra-curial punishment" the applicant would inevitably suffer through permanent exclusion from the medical and allied health professions. Johnson J dissented strongly, characterising the aggregate sentence as manifestly inadequate given the number of victims, including girls as young as 16.

Result of the Crown appeal: Although a specific error regarding count 21's objective seriousness was established, the Court (by majority) declined to intervene. Consistent with established principle, a Crown sentence appeal under s 5D of the Criminal Appeal Act 1912 (NSW) requires the appellate court to be satisfied the sentence is manifestly inadequate before it will increase the sentence. Because the majority was not so satisfied, the Crown appeal was dismissed.

Orders Made

• Dismiss the sentence appeal

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that CCTV footage need not be conclusive on its own where other evidence, including tendency evidence, forms part of the totality on which a jury may be satisfied beyond reasonable doubt.
  • Tendency evidence admitted without objection, establishing a pattern of conduct across multiple complainants, can lawfully and significantly contribute to the support of individual verdicts.
  • A specific sentencing error, such as a misdescription of objective seriousness, does not automatically warrant intervention on a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW). The appellate court must also be satisfied the sentence is manifestly inadequate, unreasonable, or plainly unjust before it will increase the sentence.
  • Describing a sentence as "lenient" is not equivalent to finding it manifestly inadequate: the majority found more than leniency is required to justify appellate intervention in a Crown appeal.
  • The permanent loss of registration and future unemployability in a regulated profession can constitute a relevant form of extra-curial punishment to be weighed in assessing whether a sentence is plainly unjust, though this consideration did not resolve the dissent between judges in this case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38(a), 61M(1), 61O(1A)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Health Practitioner Regulation National Law 2009
- Public Health Regulation 2012

Key Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- EJDG v R [2012] NSWCCA 251
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- DL v R [2020] NSWCCA 164
- FL v R [2020] NSWCCA 114
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Zahorsky v R [2013] NSWCCA 268
- Lees v R [2019] NSWCCA 65
- Magro v R [2020] NSWCCA 25
- Taitoko v R [2020] NSWCCA 43