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Ivanov v The Queen

Ivanov v The Queen

Case [2019] VSCA 219 8 October 2019

Criminal Liability

Sentencing

Remorse

Early Pleas of Guilty

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0132

STEFAN IVANOV (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of the identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of the applicant and the victim respectively.

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JUDGES:	EMERTON JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 August 2019
DATE OF JUDGMENT:	8 October 2019 First Revision: 8 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 219
JUDGMENT APPEALED FROM:	DPP v Ivanov [2018] VCC 834 (Judge M Sexton)

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CRIMINAL LAW — Application for leave to appeal — Sentence — Rape — Two ‘composite’ (i.e. rolled-up) charges — Applicant and victim in relationship for 22 years —Applicant discovered victim’s affair — Applicant confronted victim and raped her — Applicant raped victim again two days later — Punitive, degrading offending — Applicant reported offending to mental health clinician who reported to police — Applicant confessed to police — Victim did not want police involved — Matter would not have been reported but for applicant’s self-reporting — Victim wishes to repair relationship and for applicant to return to family as soon as possible — Applicant’s judgement impaired by adjustment disorder — Early pleas of guilty — Remorse — No prior convictions — Previous good character — Excellent prospects of rehabilitation — Imprisonment more burdensome as applicant primary carer for children and suffers depression — Total effective sentence of nine-and-a-half years’ imprisonment with non-parole period of seven years — Victim impact/personal circumstances — Whether fact of imprisonment treated as an aggravating feature — Whether judge erred in factual findings concerning remorse and/or denied applicant procedural fairness — Whether individual sentences, total effective sentence and non-parole period manifestly excessive — Application for leave to appeal granted — Appeal allowed — Extraordinary case calling for extraordinary sentence — Applicant resentenced to total effective sentence of four years’ imprisonment with non-parole period of two years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis QC	Amad & Amad Lawyers
For the Respondent	Ms E Ruddle	Mr J Cain, Solicitor for the Director of Public Prosecutions

EMERTON JA

CROUCHER AJA:

Overview

By any measure, this is an exceptional case.

In May 2017, Stefan Ivanov discovered evidence that JL — his partner of 22 years and the mother of his three young children — had been having an affair for the last five years. He felt hurt and humiliated, and was incensed. Of all the ways in which he might have reacted, Mr Ivanov completely lost self-control and raped JL. Worse still, despite apologising after coming to his senses immediately after this episode, only 36 hours later, after discovering more lurid detail of the affair, he lost control and raped JL again. Each offence, which we describe in more detail below, was committed in a degrading and punitive manner. His behaviour was reprehensible.

The day after the second rape, concerned…

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 Ivanov v The Queen

Details

AGLC: Stefan Ivanov (a pseudonym)[1] v The Queen [2019] VSCA 219
Case: [2019] VSCA 219
Decision Date: 8 October 2019 First Revision: 8 October 2019

CaseChat Overview and Summary

The case of Ivanov v The Queen involved the applicant, Ivanov, who was convicted of two counts of rape. The dispute was centred on the sentence imposed by the trial judge and whether it was manifestly excessive. The High Court of Australia was asked to review the sentence and grant leave to appeal. The central legal issues in the case were whether the trial judge erred in factual findings concerning the applicant's remorse, whether the judge denied the applicant procedural fairness, and whether the individual sentences, total effective sentence, and non-parole period were manifestly excessive. The Court also considered whether the fact of imprisonment should be treated as an aggravating feature.

The High Court found that the trial judge erred in the factual findings concerning the applicant's remorse, as well as in not providing the applicant with procedural fairness. The Court held that the individual sentences, total effective sentence, and non-parole period were manifestly excessive, and that the fact of imprisonment should not be treated as an aggravating feature. In light of these findings, the Court granted leave to appeal and allowed the appeal, resentencing the applicant to a total effective sentence of four years' imprisonment with a non-parole period of two years. The Court concluded that this was an extraordinary case calling for an extraordinary sentence, taking into account the applicant's good character, prospects of rehabilitation, and the impact of imprisonment on the applicant and his family.

The final orders of the Court were that the application for leave to appeal was granted, the appeal was allowed, and the applicant was resentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years. The Court's decision highlighted the importance of considering the unique circumstances of each case when determining an appropriate sentence, particularly in cases involving rape and the role of remorse and rehabilitation in the sentencing process.

Orders