CRIMINAL LAW – Appeal – Sentence – Crown appeal – Multiple rapes – False imprisonment – Sexual assault – Sentenced to 11 years’ imprisonment – Non-parole period of 7 years and 9 months – Whether sentence manifestly inadequate – Prolonged and repeated conduct – Victim degraded and humiliated – Exercise of physical force – Offender ignored victim’s obvious distress – Planning and deception – Very serious offending – High moral culpability – Serious victim impact – Sentence manifestly inadequate – Appeal allowed – Respondent resentenced – Total effective sentence 13 years’ imprisonment – Non-parole period of 10 years.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr B F Kissane QC with Mr L Cameron
Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent
Ms S Flynn QC with Ms J McColl
Victoria Legal Aid
MAXWELL P BEACH JA WEINBERG JA:
Summary
The respondent (‘AM’) was convicted by a County Court jury of four charges of rape, one of false imprisonment and one of sexual assault. All of the offences were committed against the same woman (‘L’), a student who had arrived in Australia from overseas in the weeks preceding the offending.
He was sentenced to 6 years’ imprisonment on two of the rape charges, 6 years and 6 months’ imprisonment on the other two rape charges, 4 years on the charge of false imprisonment and 2 years on the charge of sexual assault. With orders for cumulation as set out in the table below, the total effective sentence was 11 years’ imprisonment. A non-parole period of 7 years and 9 months was fixed.
The Director of Public Prosecutions now appeals against the individual sentences, the total effective sentence and the non-parole period on the ground of manifest inadequacy. The Director’s principal complaint is that, although the judge said that these were ‘very serious examples’ of the crimes of rape, false imprisonment and sexual assault, the sentences imposed did not reflect their objective seriousness or AM’s moral culpability. As will appear, AM falsely imprisoned L for approximately six hours, during which time he subjected her to multiple rapes, violence and degrading acts. Furthermore, the offending involved a significant level of planning and deception.
For reasons which follow, we would allow the appeal and resentence AM. The individual sentences on the rape charges were well below what was required, given the gravity of the offending and the profound, long-term harm caused to the victim. On each of charges 4 and 5, the sentence for rape will be 8 years and 6 months’ imprisonment; on each of charges 8 and 10, the sentence for rape will be 9 years’ imprisonment, reflecting the fact that…
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.
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Details
AGLC
Director of Public Prosecutions v Alimadad Mokhtari [2020] VSCA 161
Case
[2020] VSCA 161
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions v Mokhtari involved an appeal by the Crown against the sentencing of the respondent, who had been convicted of multiple rapes, false imprisonment, and sexual assault. The Court of Appeal was tasked with determining whether the sentence of 11 years' imprisonment, with a non-parole period of 7 years and 9 months, was manifestly inadequate.
The central legal issue was whether the original sentence was manifestly inadequate given the gravity of the crimes committed, which included prolonged and repeated offending, degradation and humiliation of the victim, the exercise of physical force, and the offender's disregard for the victim's distress. The appeal also considered the planning and deception involved in the crimes, as well as the high moral culpability and significant victim impact. The Court of Appeal was required to assess these factors in the context of the principles of sentencing and the need for general and specific deterrence.
The Court of Appeal found that the original sentence was manifestly inadequate. The prolonged and repeated nature of the offending, the degradation and humiliation of the victim, and the offender's disregard for the victim's distress, combined with the planning and deception involved, indicated very serious offending with high moral culpability. The serious impact on the victim further underscored the need for a more substantial sentence. Consequently, the appeal was allowed, and the respondent was resentenced to a total effective sentence of 13 years' imprisonment with a non-parole period of 10 years. Additionally, various ancillary orders were made, including a forfeiture order, disposal order, forensic sample order, and a Sex Offenders Registration Order for 15 years. The respondent was also declared a serious sexual offender on specific charges.
Orders
Orders of the court
Total Effective Sentence:
13 years’ imprisonment
Non-Parole Period:
10 years’ imprisonment
Ancillary Orders:
Forfeiture order.
Disposal order.
Forensic sample order.
Serious sexual offender on charges 5, 8 and 10.
Sex Offenders Registration Order (period of 15 years).