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Khorami v R; R v Khorami

Khorami v R; R v Khorami

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Khorami v R; R v Khorami [2021] NSWCCA 228
Hearing dates: 30 July 2021
Date of orders: 24 September 2021
Decision date: 24 September 2021
Before: Bell P at [1];
Johnson J at [44];
Cavanagh J at [425].
Decision:
Conviction appeal:
1. Grant leave to appeal against conviction.
2. Appeal against conviction dismissed.
Crown sentence appeal:
3. By majority, appeal dismissed.

Catchwords:
CRIME – appeal against conviction – Applicant found guilty by jury of administering an intoxicating substance with intent to commit an indictable offence (aggravated indecent assault) under s. 38(a) Crimes Act 1900 (one count), aggravated indecent assault under s. 61M(1) Crimes Act 1900 (19 counts) and committing an aggravated act of indecency under s. 61O(1A) Crimes Act 1900 (two counts) – ground of appeal contends that guilty verdicts on 10 of 22 counts were unreasonable or cannot be supported on the evidence – Applicant a sleep technician charged with committing offences against five separate female victims during course of overnight sleep studies at medical facility – consideration of totality of evidence – sleep studies recorded on CCTV but not all acts of Applicant clearly visible in recordings – significant role of tendency directions in determination of verdicts – held that verdicts of guilty on each of the 10 challenged counts was open to the jury – conviction appeal dismissed
CRIME – Crown sentence appeal – Applicant sentenced to aggregate term of imprisonment for six years with non-parole period of three years and nine months – five female victims aged between 16 and 29 years – offences committed over six-week period in 2018 – Applicant qualified as medical practitioner working as sleep technician – Applicant entered sleep study room and committed offences against victims whilst purporting to touch them for purposes associated with the sleep study – whether error in assessment of objective seriousness concerning six of 22 offences (ground 1) – whether error in failing to provide reasons as to how Applicant’s prior good character taken into account (ground 2) – whether aggregate sentence manifestly inadequate (ground 3) – ground 1 upheld in part (by majority) – ground 2 rejected – ground 3 rejected (by majority) – Crown sentence appeal dismissed (by majority)

Legislation Cited:
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912
Health Practitioner Regulation National Law 2009
Public Health Regulation 2012

Cases Cited:
BG v R [2020] NSWCCA 295
Bray v R [2018] NSWCCA 301
Brown v R [2014] NSWCCA 215
CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9
Corby v R [2010] NSWCCA 146
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions v Klep [2006] VSCA 98
DL v R [2020] NSWCCA 164
Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87
EJDG v R [2012] NSWCCA 251
Elomar v R (2014) 300…

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

Case: [2021] NSWCCA 228
Decision Date: 24 September 2021

CaseChat Overview and Summary

In the case of Khorami v R; R v Khorami, the applicant, a sleep technician, was found guilty by a jury of various serious sexual offences committed against five female victims during sleep studies at a medical facility. The charges included administering an intoxicating substance with intent to commit an indictable offence, aggravated indecent assault, and committing an aggravated act of indecency. The applicant appealed against his conviction and the Crown appealed the sentence. The central issues before the court were whether the guilty verdicts on ten of the twenty-two counts were unreasonable or unsupported by the evidence, and whether the sentence imposed was appropriate.

The court considered the totality of the evidence, including CCTV footage of the sleep studies, though not all acts were clearly visible in the recordings. The court highlighted the significant role of tendency directions in determining the verdicts. It concluded that the verdicts of guilty on each of the ten challenged counts were open to the jury, given the evidence and the directions provided. Consequently, the conviction appeal was dismissed. Regarding the Crown's appeal against the sentence, the court found that while there was an error in the assessment of the objective seriousness concerning six of the offences, this did not warrant altering the sentence. The court also rejected the argument that the sentence was manifestly inadequate and that the applicant's prior good character had not been adequately taken into account. Thus, the Crown's appeal against the sentence was dismissed by a majority.

In summary, the applicant's appeal against conviction was dismissed as the guilty verdicts were supported by the evidence and directions given to the jury. The Crown's appeal against the sentence was also dismissed, despite some errors in the sentencing assessment. The court found that the sentence was not manifestly inadequate and that the applicant's good character had been considered appropriately.

Orders