R v Ahmed - [2006] VSCA 200

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 290 of 2005

THE QUEEN

MUKHTAR MOHAMMED AHMED

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JUDGES:	NETTLE, NEAVE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2006
DATE OF JUDGMENT:	14 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 200	1st Revision - 3 October 2006

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CRIMINAL LAW – Sentencing – Rape and False Imprisonment - Total effective sentence of four years and six months’ imprisonment - Whether manifestly excessive – Whether sentencing Judge took into account psychiatric dysfunction of the appellant – Post traumatic stress disorder – Whether fresh evidence relating to the mental condition of the appellant justified re-opening of the sentence – No inadequacy of sentence - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr C. B. Boyce	Victoria Legal Aid

NETTLE, J.A.:

I shall invite Neave, J.A. to deliver the first judgment.

NEAVE, J.A.:

The appellant pleaded guilty to one count of false imprisonment, and one count of rape. He was sentenced to 18 months’ imprisonment on the false imprisonment count, and four years on the count of rape. Six months of the false imprisonment sentence was to be cumulative on the rape sentence, resulting in a total effective sentence of four years and six months’ imprisonment with a three year non-parole period. He now appeals against that sentence.

Background

In May 1998, the appellant and his brother were outside Crown Casino nightclub where they met the complainant, who knew the offender’s brother. The complainant returned with the appellant and his brother to their flat in Ascot Vale to obtain or smoke marijuana.

The appellant tried to kiss the complainant, who then asked to go home. The appellant agreed to walk the complainant to a nearby service station, so that the complainant could call a taxi.

While walking towards the service station, the appellant grabbed the complainant around her left shoulder and placed a sharp edged metal instrument to her rib cage. He forced her into a disused utility room in the block of flats, saying “I’m going to have my way with you bitch.” The complainant replied “you don’t need the knife, you’re in control.” It was the appellant’s conduct in forcing the complainant into the room that was the subject of the false imprisonment count.

Once in the utility room, the appellant told the complainant to remove her skirt, and to put her hands against the wall. She complied because she was frightened. The appellant then moved behind her, and placed his penis inside her vagina, thrusting until ejaculation. The appellant then left the room. This conduct was the basis of the rape count.

The complainant went to a nearby service station to make a phone call to her boyfriend. She told the console operator that she had been raped. The police attended, and took the complainant to the Royal Women’s Hospital for treatment and examination.

The appellant was apprehended a few days…

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 R v Ahmed

Details

AGLC: R v Ahmed [2006] VSCA 200
Case: [2006] VSCA 200
Decision Date: 14 September 2006

CaseChat Overview and Summary

The case of R v Ahmed involved the appellant, who was convicted of rape and false imprisonment and sentenced to a total effective term of imprisonment of four years and six months. The appellant appealed against the sentence on the grounds that it was manifestly excessive, and that the sentencing judge had failed to take into account his psychiatric dysfunction, including post-traumatic stress disorder. The appellant also argued that fresh evidence relating to his mental condition justified the reopening of the sentence. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the sentence was manifestly excessive and whether the sentencing judge had failed to take into account the appellant's psychiatric dysfunction, including post-traumatic stress disorder, when determining the sentence. The court also needed to determine whether fresh evidence relating to the mental condition of the appellant justified the reopening of the sentence.

The court found that the sentence was not manifestly excessive, as it had taken into account the appellant's mitigating factors, including his early guilty plea, his remorse, and his psychiatric dysfunction. The court also found that the sentencing judge had considered the appellant's psychiatric dysfunction, including post-traumatic stress disorder, when determining the sentence. The court further found that the fresh evidence relating to the mental condition of the appellant did not justify the reopening of the sentence, as it did not provide any new information that would have altered the sentence. The appeal was therefore dismissed.

The court did not consider it necessary to make any orders regarding the appeal. The sentence of four years and six months’ imprisonment remained in place, and the appellant's appeal was dismissed.

Orders