Esmatullah Sharifi v The Queen - [2013] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0297

ESMATULLAH SHARIFI	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	BUCHANAN, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 May 2013
DATE OF JUDGMENT	27 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 126
JUDGMENT APPEALED FROM	R v Sharifi (Unreported, County Court of Victoria, Judge Dean, 14 April 2012)

---

CRIMINAL LAW – Sentence – Rape – Appellant offered the victim a lift home and then raped her in his car – Appellant, a refugee from Afghanistan, suffered depression and post-traumatic stress – Sentencing judge erred in giving no weight to the psychologist’s report as to the appellant’s risk of re-offending – Appellant’s risk of re-offending assessed as ‘moderate’ – Judge could not be satisfied that the appellant intended to rape the victim before she entered his vehicle – Sentence manifestly excessive – Appeal allowed.

---

Appearances:	Counsel	Solicitors
For the Appellant	Mr J D McLoughlin	Victoria Legal Aid
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN, ASHLEY & REDLICH JJA:

On 5 November 2009 the appellant was sentenced by a judge in the County Court to a term of 9 years and 6 months’ imprisonment with a minimum term of 7 years’ imprisonment after he had pleaded guilty to two charges of rape and one charge of false imprisonment.

On 12 April 2012, the appellant was arraigned in the County Court and pleaded guilty before another judge to an indictment containing one charge of rape and was sentenced to be imprisoned for a term of 9 years. The appellant was sentenced as a serious sexual offender. The rape occurred five days before the offences for which the appellant was sentenced on 5 November 2009. The sentencing judge on 12 April 2012 ordered that 4 years and 6 months of the sentence he imposed be cumulated on the earlier sentence, creating a total effective sentence of 14 years’ imprisonment. He fixed a new non-parole period, dating from the day of sentence, of seven years and eight months’ imprisonment. His intention was that the appellant serve a minimum term of 11 years’ imprisonment – the appellant having by then served three years and four months’ imprisonment under the 2009 sentence.

The appellant appeals, by leave, against the sentence imposed on 12 April 2012.

On 19 December 2008, the complainant, a girl aged 18 years, was sitting alone on the footpath near a nightclub in Frankston.

The appellant, who had driven from his house in Tullamarine to Frankston, came across the complainant. He walked up to her and commenced to talk to her. The complainant explained that she had been left behind by friends and after she spoke on the telephone to them, the appellant offered to drive her to a hotel in Mornington where her friends were.

In fact, the appellant drove the complainant some distance from Mornington. The girl became concerned for her safety and twice sent text messages to…

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 Esmatullah Sharifi v The Queen

Details

AGLC: Sharifi v The Queen [2013] VSCA 126
Case: [2013] VSCA 126
Decision Date: 27 May 2013

CaseChat Overview and Summary

Esmatullah Sharifi was convicted of raping a woman who he had offered a lift to in his car. He appealed against his sentence, which was a term of imprisonment with a non-parole period. The appeal was heard by the High Court of Australia. The primary legal issue before the court was whether the trial judge had erred in imposing a sentence that was manifestly excessive. A secondary issue was whether the judge had erred in not giving sufficient weight to the psychologist's report indicating that the appellant had a moderate risk of re-offending.

The court found that the sentencing judge had erred by not giving sufficient weight to the psychologist's report that assessed the appellant's risk of re-offending as moderate. The court also found that the judge could not be satisfied that the appellant intended to rape the victim before she entered his vehicle. The court considered that these errors led to the sentence being manifestly excessive. The court noted that the appellant, a refugee from Afghanistan, suffered from depression and post-traumatic stress, which were factors that should have been taken into account in sentencing. The appeal was allowed on the basis that the sentence was manifestly excessive.

Orders