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R v Comert

R v Comert

Case [2004] NSWCCA 125 6 May 2004

Appeal

Aggravated Sexual Assault

Sentencing

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Gazi Comert [2004] NSWCCA 125

FILE NUMBER(S):
60340/03
60423/03

HEARING DATE(S): 05/04/2004

JUDGMENT DATE: 06/05/2004

PARTIES:
Regina (respondent)
Gazi Comert (applicant)

JUDGMENT OF: Sully J Hidden J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0245

LOWER COURT JUDICIAL OFFICER: Hock DCJ

COUNSEL:
P Bodor QC (applicant)
E Wilkins (Crown)
Appellant in Person for conviction appeal.

SOLICITORS:
Legal Aid Commission (applicant)
S Kavanagh (Crown Solicitors)

CATCHWORDS:
CRIMINAL LAW:
Appeal
appeal against conviction and application for leave to appeal against sentence
aggravated sexual assault
no question of principle in conviction appeal
whether sentence manifestly excessive
whether sentencing judge took into account irrelevant matter

LEGISLATION CITED:

DECISION:
Appeal against conviction dismissed. By majority, application for leave to appeal against sentence granted and appeal allowed - sentence passed in the District Court quashed - in lieu, sentence of six years imprisonment from 7 February 2003, non-parole period four and a half years.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60340/03
60423/03
SULLY J
HIDDEN J
HISLOP J
Thursday, 6 May, 2004

REGINA v Gazi COMERT

Judgment

SULLY J: In October 2002 the appellant, Mr. Comert, stood trial in the District Court at Sydney before her Honour Judge Hock and a jury. The charge brought against the appellant was one of aggravated sexual assault against his wife. Such an offence is a contravention of section 61J(1) of the Crimes Act 1900 (NSW); and it attracts upon conviction a maximum penalty of imprisonment for 20 years. On 1 November 2002 the jury returned a verdict of guilty. On 21 February 2003 the appellant was sentenced to imprisonment for 8 years, with a non-parole period of 6 years. The appellant challenges his conviction and applies for leave to appeal against his sentence.
The hearing of the appeal was somewhat complicated by reason of the fact that the appellant was granted legal aid for the purpose only of pursuing his application for leave to appeal against sentence. An application by him for legal aid in connection with his appeal against conviction was refused; with the consequence that the appellant represented himself in his conviction appeal, but was represented by Senior Counsel in connection with his application for leave to appeal against sentence.
The remarks on sentence of the learned trial Judge contained the following helpful summary of the material facts:
“The complainant, a young Italian woman, visited Australia from Italy during 1998 and 1999. She travelled to various parts of the country, ultimately arriving in Sydney where she met the offender. She and her girl-friend stayed for a few weeks at the offender’s unit in Manly. The complainant subsequently commenced a relationship with him and on 19 June 1999 they married.
The complainant gave evidence that the marriage was a violent one and she tried to leave the offender on at least two occasions. On one of those, in January 2000, she went to the police in Manly who took her to a refuge.…

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 Comert

Details

AGLC: R v Comert [2004] NSWCCA 125
Case: [2004] NSWCCA 125
Decision Date: 6 May 2004

CaseChat Overview and Summary

The appeal in R v Comert was heard in the High Court of Australia, with the appellant challenging both his conviction and the sentence imposed following his conviction for aggravated sexual assault. The case involved a serious incident of sexual violence against a woman, where the appellant was convicted and sentenced by a lower court. The appeal raised two primary issues: the correctness of the conviction and whether the sentence was manifestly excessive, with a particular focus on whether the sentencing judge had considered irrelevant factors in determining the penalty.

The High Court considered whether there was any legal error in the conviction that warranted overturning it. The court found no legal errors in the conviction process, affirming that the evidence was sufficient to support the jury's verdict. The second issue pertained to the sentence. The appellant argued that the sentence was excessive and that the sentencing judge had taken into account irrelevant matters. The court examined the sentence in light of the principles of sentencing and the circumstances of the offence, ultimately concluding that while the sentence was severe, it was not so excessive as to warrant interference by the High Court.

In reaching its decision, the High Court highlighted the importance of maintaining the integrity of the jury's role in criminal trials and underscored the broad discretion afforded to sentencing judges in determining appropriate penalties. The court found that the sentencing judge had not erred by considering relevant factors and that the sentence, while severe, was within the bounds of acceptable judicial discretion. Consequently, the appeal against the conviction was dismissed, and the application for leave to appeal against the sentence was also denied.

The final orders of the court affirmed the conviction and sentence imposed by the lower court, with no appeal against either being successful. The High Court's decision reinforced the principles of judicial independence in sentencing and the deference owed to the original trial and sentencing process.

Orders