DPP v Elfata

[2019] VSCA 63

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0193

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
AHMAD TULLOCH ELFATA	Respondent

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JUDGES:	PRIEST AP, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2019
DATE OF JUDGMENT:	21 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 63
JUDGMENT APPEALED FROM:	[2018] VCC 1345 (Judge Smith)

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CRIMINAL LAW – Crown appeal – Sentence – Rape – Stalking with intent to cause physical harm – Respondent sentenced to two years and three months’ imprisonment with non-parole period of one year – Whether sentence and non-parole period manifestly inadequate – Good prospects of rehabilitation – Offences at lower end of seriousness – Appeal dismissed – Shrestha v The Queen [2017] VSCA 364 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms F L Dalziel SC with Ms A S Ellis	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr D Grace QC	Mr B Wilkinson

PRIEST AP
BEACH JA
T FORREST JA:

Background

1. The respondent was convicted by a jury of rape and stalking with intent to cause physical harm.  He was acquitted of reckless conduct endangering serious injury and common law assault.  The table below sets out the sentences imposed.

   
   
   

Charge	Offence	Maximum	Sentence	Cumulation
1.	Rape [Crimes Act 1958 s 38(1)]	25 years’ imprisonment	2 years’ imprisonment	Base
2.	Reckless conduct endangering serious injury  [Crimes Act 1958 s 23]	25 years’ imprisonment	Acquitted	N/A
3.	Common law assault	5 years’ imprisonment	Acquitted	N/A
4.	Stalking (intent to cause physical harm) [Crimes Act 1958 s 21A]	10 years’ imprisonment	6 months’ imprisonment	3 months
Total Effective Sentence:		2 years and 3 months’ imprisonment
Non-Parole Period:		1 year
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		84 days
Other orders:		Forensic order pursuant to s 464ZF of the Crimes Act 1958

1. The appeal is brought on the following ground:

Ground One: The individual sentence imposed on Charge 1, the total effective sentence and the non-parole period are manifestly inadequate in all the circumstances.

Particulars:  The sentences imposed:

a)failed to have sufficient regard to the maximum penalty prescribed for the offence;

b)        failed to properly reflect the objective gravity of the offending;

c)failed to have sufficient regard to the impact of the offending on the victim;

d)failed to give sufficient weight to protection of the community, principles of general deterrence, specific deterrence, denunciation and the need for just punishment; and

e)        gave excessive weight to factors in mitigation.

Summary of the offending

1. On 27 August 2015, the complainant and the respondent were together in the car park of their apartment complex when the respondent removed certain property from the complainant’s car.  The complainant and respondent had conducted a relationship over the two preceding years.  The couple had argued that morning and the complainant drove from the car park.  The respondent returned to the apartment but discovered that he had been locked out without any means of re-entry.  He…