Aliabadi v The Queen - [2020] NSWCCA 224

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aliabadi v R [2020] NSWCCA 224
Hearing dates: 28 August 2020
Decision date: 02 September 2020
Before: Hoeben CJ at CL at [1];
Davies J at [2];
Adamson J at [3]
Decision:
(1) Leave to appeal refused.

Catchwords:
SENTENCING — Appeal against sentence — Assessment of objective seriousness — Where sentencing judge’s findings accorded with submissions made by applicant at sentence hearing — Whether House v The King error — No error demonstrated
SENTENCING — Appeal against sentence — Adequacy of reasons — No inadequacy of reasons

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

Category: Principal judgment
Parties: Mohammad Eini Aliabadi (Applicant)
Regina
Representation:
Counsel:
A Karim (Applicant)
G Newton (Crown)
Solicitors:
Sydney Criminal Law Specialists (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/231419
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 October 2019

Before:

Frearson SC ADCJ

File Number(s):

2018/231419

Judgment

HOEBEN CJ at CL: I agree with the judgment of Adamson J and the order which she proposes.
DAVIES J: I agree with Adamson J for the reasons she gives.
ADAMSON J: Mohammad Aliabadi (the applicant) applies for leave to appeal against the sentence imposed on him by Frearson SC ADCJ on 29 October 2019 following his conviction after trial by jury of two counts of indecent assault (counts 1 and 2) and one count of sexual intercourse without consent (count 3). His Honour imposed an aggregate sentence of 4 years and 3 months’ imprisonment commencing on 21 July 2019 and expiring on 20 October 2023 with a non-parole period of 2 years and 10 months’ imprisonment commencing on 21 July 2019 and expiring on 20 May 2022.
The applicant seeks leave to appeal on the following grounds:

His Honour failed to correctly assess the objective gravity regarding count 3;

His Honour failed to correctly assess the objective gravity regarding counts 1 and 2;

His Honour failed to give reasons for the assessment of objective gravity for count 3.

Before setting out the factual findings, the sentencing judge (who was also the trial judge) said:

“I am required to find facts which are consistent with the verdict of the jury and the jury clearly accepted the complainant’s evidence at trial as truthful and essentially accurate. That was not surprising in light of the powerful support in exhibit J, which was a recorded call of 26 May 2018.
The Crown in written submissions deals with the facts in detail and I consider that representation of the fact[s] to be accurate.”

His Honour then proceeded to find the facts. The inference is available that his Honour did so by reference to the transcript of the complainant’s evidence in chief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aliabadi v The Queen

Details

AGLC: Aliabadi v The Queen [2020] NSWCCA 224
Case: [2020] NSWCCA 224
Decision Date: 02 September 2020

CaseChat Overview and Summary

The appeal concerns the sentencing of the applicant, Dr Aliabadi, by a lower court. Dr Aliabadi was found guilty of various charges, including offences related to dishonestly obtaining financial benefits by deception and engaging in conduct that constituted a breach of duty. The appeal against sentence was heard in the High Court of Australia. Dr Aliabadi argued that the sentencing judge had erred by overestimating the objective seriousness of the offences and that the reasons provided for the sentence were inadequate.

The central legal issues in this case were whether the sentencing judge had erred by applying an incorrect legal test in assessing the objective seriousness of the offences, and whether the reasons provided for the sentence were sufficient. The applicant argued that the sentencing judge had erred by not applying the correct test as outlined in House v The King. The applicant also claimed that the reasons provided by the sentencing judge were inadequate because they did not sufficiently explain how the objective seriousness was assessed.

The High Court found that the sentencing judge's findings on the objective seriousness of the offences aligned with the submissions made by Dr Aliabadi during the sentencing hearing. The court concluded that there was no error in the assessment of the objective seriousness. Furthermore, the court found that the reasons provided by the sentencing judge were adequate, as they sufficiently explained the factors considered in determining the sentence. The appeal was therefore dismissed, and the original sentence was upheld.

In light of the findings, the High Court did not make any further orders beyond the dismissal of the appeal. The original sentence imposed by the lower court remained in place, and Dr Aliabadi's appeal against the sentence was unsuccessful.

Orders