Nabil Sadaka v The Queen - [2015] VSCA 288

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0081

NABIL SADAKA	Applicant
V
THE QUEEN	Respondent

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JUDGES:	REDLICH, WHELAN AND KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2015
DATE OF JUDGMENT:	29 October 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 288	First Revision: 29 October 2015
JUDGMENT APPEALED FROM:	DPP v Sadaka (Unreported, County Court of Victoria, Judge Sexton, 27 February 2015 (conviction))

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CRIMINAL LAW – Rape – Lack of capacity to consent – Applicant aware of complainant’s lack of capacity to consent to sexual acts – Section 36(e), s 38(2)(a) Crimes Act 1958 – Whether verdict unsafe and not supported by evidence – Directions to jury – Whether trial judge erred in instructions given to jury – Evidence of complainant not inconsistent – Judge’s direction sufficiently balanced –– Application for leave to appeal refused.

CRIMINAL LAW – Appeal against sentence – Whether sentence manifestly excessive – No prior convictions – Serious example of offending – Complainant suffered from mental disability – Significant breach of trust – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Nash QC with Ms J Swiney	Victoria Legal Aid
For the Crown	Ms D Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA
WHELAN JA
KAYE JA:

The applicant, who is now 62 years of age, was convicted by the jury empanelled on his trial of one charge of rape. Following a plea, he was sentenced to a term of imprisonment of 7 years, with a minimum non-parole period of 5 years. The applicant seeks leave to appeal against his conviction and sentence.

The indictment alleged one single charge against the applicant, namely, that at Glen Waverley between 1 January 2003 and 31 December 2003 he raped PM, the complainant, by intentionally sexually penetrating her by introducing his penis into her mouth without her consent, while being aware that she was not consenting or might not be consenting.

At the time of the offence, PM was a 21 year old female with a mild intellectual disability. She regularly caught the 623 bus from Carnegie in order to travel to the Holmesglen TAFE in Chadstone, where she attended classes . The prosecution alleged that, in early 2003, PM approached the applicant for assistance because she believed that she was being stalked at Chadstone Shopping Centre. At the applicant’s suggestion, she boarded the bus. The applicant drove the bus to a designated parking area in Glen Waverley. He then attempted to hug the complainant, but she ran away. Subsequently, on the next occasion that the complainant boarded the bus, the applicant again drove to the Glen Waverly car park. There, he sat at the rear of the bus, pulled his penis out of his pants, and told PM to suck it. The prosecution alleged that PM, not having any understanding of what she was doing, complied with the applicant’s direction and performed oral sex on him. PM gave evidence that, on a…

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: Nabil Sadaka v The Queen [2015] VSCA 288
Case: [2015] VSCA 288
Decision Date: 29 October 2015

CaseChat Overview and Summary

The case of Nabil Sadaka v The Queen involved an appeal against both conviction and sentence. The applicant, Sadaka, had been convicted of rape, with the complainant suffering from a mental disability that impaired her capacity to consent. The appeal contested both the safety of the verdict and the excessiveness of the sentence. The Court of Appeal considered whether the trial judge had erred in his instructions to the jury regarding the lack of consent and whether the sentence was manifestly excessive.

The central legal issues revolved around whether the trial judge had correctly directed the jury on the matters of consent and the applicant's awareness of the complainant’s incapacity. The Court examined whether the evidence supported the jury’s verdict and if the judge's directions were sufficiently balanced. Additionally, the appeal questioned whether the sentence imposed was manifestly excessive, considering the absence of prior convictions, the serious nature of the offence, and the breach of trust involved.

The Court of Appeal found that the trial judge's directions to the jury were not in error and were sufficiently balanced. The evidence presented did not indicate any inconsistency regarding the complainant’s incapacity, and the jury's verdict was safe and supported by the evidence. The Court also determined that the sentence was not manifestly excessive, taking into account the seriousness of the offence and the breach of trust. Consequently, the appeal against both conviction and sentence was dismissed, and the application for leave to appeal was refused.

Orders