R v Dayeian - [2000] NSWCCA 348

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Dayeian [2000] NSWCCA 348

FILE NUMBER(S):
60745 of 1999

HEARING DATE(S): 29 August 2000

JUDGMENT DATE: 29/08/2000

PARTIES:
Regina v John Dayeian

JUDGMENT OF: Mason P Levine J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/0354

LOWER COURT JUDICIAL OFFICER: Ford ADCJ

COUNSEL:
A Radojev
(Appellant)

L M B Lamprati
(Crown)

SOLICITORS:
George Loupos & Associates
(Appellant)

S E O'Connor
(Crown)

CATCHWORDS:
Criminal law - Crimes Act 1900 s 61I - sexual intercourse without consent - husband/wife - severity - special circumstances - sentence appropriate

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted. Apeal dismissed.

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60745 of 1999
MASON P
LEVINE J
GREG JAMES J
TUESDAY 29 AUGUST 2000
REGINA v JOHN DAYEIAN

LEVINE J: The applicant seeks leave to appeal against the asserted severity of the sentence imposed upon him by his Honour Acting Judge Ford at the Campbelltown District Court on 12 November 1999.
The applicant had pleaded not guilty to one count of sexual intercourse without consent (s 61I of the Crimes Act 1900) and not guilty to three counts of sexual intercourse without consent in circumstances of aggravation (s 61J).
He was found guilty by the jury of the charge in the first count. With respect to the other three counts the jury did not find acts of aggravation, but found the applicant guilty of the available alternative under section 61I.
Thus the applicant stood to be sentenced in relation to four jury findings of guilt in relation to four counts, each carrying the maximum of fourteen years penal servitude as then provided.
It was in respect of the fourth count in the indictment that the applicant was sentenced to a minimum term of two years penal servitude to commence on 12 November 1999 and to expire on 11 November 2001 and an additional term of two years. With respect to each of the other counts, a fixed term of twelve months to be served concurrently was imposed.
The jury's verdict clearly reflected the failure of the Crown to satisfy that tribunal beyond reasonable doubt of the attendant circumstances of aggravation in respect of the three counts under section 61J.
The four acts of sexual intercourse were digital. The first count relating to anal intercourse in that sense, the remaining three counts vaginal. The applicant and the complainant were husband and wife. The acts of sexual intercourse took place over a period of about five months between September 1997 and March 1998. I do not consider it necessary to elucidate further the facts of each incident, save to remark that perhaps in the scheme of things, if I might use that phrase in a non-technical sense, an idiosyncratic predilection on the part of the applicant in relation to sexual conduct was connected with the act the subject of the first count.
The grounds of appeal are that the sentence imposed by his Honour was manifestly excessive, and outside of any appropriate range.
It has been submitted, in a two-pronged attack as it were, on the sentence that his Honour, without explanation, seized upon the fourth count to impose the four year sentence structured, as I have indicated. In reality, it was submitted, the conduct founding the verdict on that count was no different to that in respect of the second and third, though is different from the first by reason of anatomical considerations.
The explanation, in my view, for the imposition of the two plus two years sentence is implicit when one reads his Honour's remarks on sentence. It was founded upon his Honour, in my view, quite properly in the circumstances (at the conclusion of the trial over which he had presided), sentencing this applicant for a series of four separate acts committed over a period of five months. The absence of any express indication by his Honour as to why the fourth count was selected, in my view, exposes no error in procedure, principle or in due course substantively on the matters attending sentence. His Honour, in effect, can be seen to have imposed a sentence reflecting a view of the criminality involved in the four offences of which the applicant had been found guilty and had chosen that which was the most recent in time, the last in the series.
The second attack made upon the sentence rests upon what is asserted to be his Honour not having taken into account material said to have been available to him on the subject of “special circumstances”. It was submitted that in that part of his Honour's remarks on sentence where he refers to special circumstances, he deals with but few of what are said to have been the many components of such circumstances.
The relevant part of his Honour's remarks on sentence are, true enough, brief and appear on page four, where his Honour says:
"Special circumstances arise because, in my view, the prisoner would require assistance when he is released back into the community to overcome or try to keep in check his tendency to drink too much and resort to other matters of allaying depression".
That part of his Honour's remarks on sentence follows upon his Honour's remarks at page two where he states,
"It has been pointed out to me that the prisoner suffers quite significant defects, not only as a matter of personality, but also in relation to social contacts and intercourse. I do not doubt that the over-indulgence of intoxicating liquor did lead to the commission of these offences. Dr Hooper regards Mr Dayeian as having an alcohol dependence disorder. He also, according to Dr Hooper, had an adjustment disorder reactive depression relating to charges made against him and it is quite possible that he had suicidal tendencies".
Speaking for myself, bearing in mind those remarks at page two, the brief nature of his Honour's comments at page four, on any reasonable view, can be taken to have encapsulated, embraced and included the matters to which he referred on page two. It is nonetheless still contended that his Honour overlooked a catalogue of characteristics on the subject of special circumstances ranging from very poor education, parenting difficulties, addictive personality, difficulty in human relationships, unemployment, and what is said to be linguistic impairment or language impairment. But when one takes a view of what his Honour said and of the material his Honour undoubtedly had before him made up of not only Dr Hooper's report, the psychologist's report and the pre-sentence report, his Honour, with some economy of language, nonetheless can still, in my view, be taken to have turned his mind to each of those matters to which Mr Radojev has referred.
It is clear to me that his Honour took into account the objective seriousness of these four offences which this Court has described, time and again, as acts of violence, serious acts of violence, and acts of humiliation. His Honour clearly took into account that this applicant had no criminal antecedents. His Honour rejected, and properly so in my view, submissions made by trial counsel that the case fell within “exceptional” circumstances, thus calling for the dispensation of the requirement for a custodial sentence.
In the context of having rejected the submission as to “exceptional” circumstances, his Honour appears to me, as I have said, to have made a finding as to available special circumstances and conducted the sentencing exercise that reflected the proper measuring of the objective seriousness of those offences of which the applicant had been found guilty and the subjective circumstances attending the applicant. His Honour arrived at a sentence which cannot be impugned on either of the bases advanced for the applicant, and which viewed in all the circumstances could not be said to be manifestly excessive in the sense generally understood.
It is not a light sentence, but as far as I am concerned, no error having been exposed in the process at which his Honour arrived at it, no basis for intervention by this Court has been established. The relevant authority as to the objective seriousness of the offence is clear: Regina v Hartikainen (unreported CCA, 8 June 1993) being the judgement of the Chief Justice (see p 3). The authorities in relation to the rejection of “exceptional” circumstances also being clear Regina v May [1999] NSWCCA 40 and see also Regina v Crisologo (1997) 99 ACR 178 at 191.
This case has had an appellate history insofar as this is the second bench to which it has come. Also the unusual and, in my view, quite sad and peculiar facts attending the verdicts of guilty warrant the grant of leave. However, as I have said, nothing warrants appellate intervention. I would propose therefore that leave be granted and that the appeal be dismissed.
MASON P: I agree.
GREG JAMES J: I do also.
MASON P: The orders of the Court will be as indicated.
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LAST UPDATED: 11/09/2000