Nachar v The Queen - [2021] VSCA 242

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0137

ABDUL NACHAR	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 August 2021
DATE OF JUDGMENT:	2 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 242
JUDGMENT APPEALED FROM:	DPP v Parra (a pseudonym) [2020] VCC 829 (Judge Ryan)

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CRIMINAL LAW – Appeal – Sentence – Rape – Appellant digitally raped victim on bus – Sentenced to eight years’ imprisonment with six years non-parole – Whether manifest excess – Whether sentencing judge placed undue emphasis on denunciation, just punishment and protection of the community in case of offender with mental illness – Appellant diagnosed with chronic psychotic disorder – Verdins principles apply –Denunciation and just punishment of lesser importance – Appellant resentenced to six years’ imprisonment with three years and six months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Thyssen	Adrian Paull Criminal Lawyers
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

On 7 December 2020, I granted the appellant leave ‘on the papers’ to appeal against a sentence of eight years’ imprisonment, with a non-parole period of six years, for rape, imposed upon him by a judge of the County Court on 11 June 2020.

As my reasons made clear, I granted leave because I considered that, when one had regard to the appellant’s impaired mental functioning, it was reasonably arguable that the sentence was manifestly excessive.[1]
[1]Nachar v The Queen (Unreported, Court of Appeal, Priest JA, 7 December 2020), [20].

Now having had the benefit of full oral argument, I am of the view that the appeal should be allowed and the appellant resentenced.[2] My reasons — which, for the sake of convenience, recapitulate much of what I had earlier written — follow.
[2]See [42] below.

The offending

It is necessary to describe the offending, which occurred in unusual circumstances.

At about 1.40 pm on 22 February 2019, the appellant, aged 35 years, boarded a Melbourne-bound bus in a regional Victorian city. He initially asked to be taken to a town in the opposite direction to the intended destination. The appellant then paid cash for a ticket to a central Victorian city, which was a stop en route to Melbourne.

When the appellant boarded it, the bus held about 40 passengers. He sat in the middle of the bus, in seat 32.

Part way into the journey, at 2.22 pm, ‘HH’, the complainant, boarded the bus at a small town, and sat in seat 31, next to the appellant. HH is a 26-year-old female who has an intellectual impairment and speech impediment.

The appellant introduced himself as ‘Sam’ — HH also introduced herself by her first name — and then asked the complainant, ‘are you OK, do you feel comfortable?’. HH was sitting with a pillow on her lap, speaking to a friend on the phone. The appellant then put his hand under the pillow and…

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 Nachar v The Queen

Details

AGLC: Nachar v The Queen [2021] VSCA 242
Case: [2021] VSCA 242
Decision Date: 2 September 2021

CaseChat Overview and Summary

In the matter of Nachar v The Queen, the appellant, a person diagnosed with a chronic psychotic disorder, appealed against his sentence for the crime of digital rape. The appellant had committed the offence on a bus against a female victim. The appellant was sentenced to eight years’ imprisonment with a non-parole period of six years. The appeal centred on whether the sentence imposed by the sentencing judge was a manifest excess and whether the judge had placed undue emphasis on the principles of denunciation, just punishment and the protection of the community. The appellant argued that these principles should hold lesser importance given his mental illness, and that the Verdins principles should be applied.

The court was required to determine whether the sentence imposed was a manifest excess by considering whether the sentencing judge had failed to give proper regard to the relevant principles of sentencing, particularly in light of the appellant's mental illness. The court was also required to assess whether the sentencing judge had placed undue emphasis on the principles of denunciation, just punishment and protection of the community, and whether this was appropriate given the circumstances of the case.

In assessing the appeal, the court noted that the appellant had been diagnosed with a chronic psychotic disorder and that the Verdins principles applied. The court found that the sentencing judge had placed undue emphasis on the principles of denunciation, just punishment and protection of the community. The court considered that these principles held lesser importance in this case due to the appellant's mental illness. The court further found that the sentence imposed was a manifest excess. Accordingly, the appeal was allowed, and the appellant was resentenced to six years’ imprisonment with a non-parole period of three years and six months.

Orders