R v Sulemanov
[2007] VSCA 288
•11 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 202 of 2007
| THE QUEEN |
| V |
| ALI SULEMANOV |
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JUDGES: | VINCENT, REDLICH AND KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 November 2007 | |
DATE OF JUDGMENT: | 11 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 288 | First revision – 14 December 2007 |
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Criminal Law – Sentence – Appellant found guilty on alternative count of taking part in an act of sexual penetration with a child under the age of 16 years – Whether judge sentenced appellant in accordance with jury verdict – Whether appellant received full benefit of acquittal on count of rape – Whether judge entitled to and in fact sentenced on basis that complainant did not consent – Whether judge failed to adequately identify the evidentiary foundation and facts for sentencing – Whether inadequate weight given to complainant’s age – Complainant nearly 16 years at time of offence – Whether excessive weight given to age difference between appellant and complainant – Manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr L C Carter | Andrew George Solicitors |
VINCENT JA:
The appellant was presented before the County Court at Melbourne, on one count of rape (count 1) and one count of taking part in an act of sexual penetration with a person under the age of 16 (count 2). These were alternative counts. He pleaded not guilty to both `and a trial ensued.
On 30 March 2007, the jury returned a verdict of guilty on count 2, acquitting him of the principal offence. The appellant had no prior convictions.
After hearing a plea in mitigation of penalty, the sentencing judge, on 26 June 2007, imposed a term of 15 months’ imprisonment, the service of nine months of which he directed be suspended for a period of two years.[1]
[1]His Honour further declared that pursuant to the provisions of the Sex Offenders Registration Act2004, that the appellant be registered as a Class 1 offender. The length of his reporting period is 15 years.
Having been granted leave to do so by a judge of this Court,[2] the appellant seeks to overturn the sentence imposed upon him on the grounds that:
[2]On 21 September 2007.
1.The learned sentencing judge erred by failing to adequately and accurately identify the evidence in the trial and to give reasons for the findings impugned by ground 2.
2.The learned sentencing judge erred by denying to the appellant the full benefit of his acquittal on the count of rape and/or in making findings that were not open to him; namely:-
(a)finding that the likely explanation for the verdict of acquittal on the count of rape “… is that the jury were not satisfied to the appropriate criminal standard that you were aware she was not consenting”;
(b)stating that whether or not the complainant was consenting is beside the point;
(c)failing to find that the appellant had consensual intercourse with the complainant;
(d) finding that it is likely that the complainant was not consenting;
(e)finding that the appellant tried to kiss the complainant, but that she resisted;
(f)finding that the appellant took advantage of the complainant’s isolation and vulnerability.
3. The learned sentencing judge gave:-
(a) no or inadequate weight to the fact that the complainant was nearly 16 at the time of the offence; and
(b) excessive weight to the age difference between the complainant and the appellant.
4. The sentence is manifestly excessive.
I now turn to the circumstances of the offending.
The background
On 24 February 2006, the victim, a young female, to whom I will refer as H and who was aged 15 years at the time, went to a flat in Dandenong with three males, one of whom was the appellant. One R, went into a bedroom with her and engaged in intercourse with her without her consent. He was later charged with rape and was subsequently convicted in the Children’s Court. The evidence before the jury on the appellant’s trial was that, when R came out of the room, the appellant was then invited by him to go in. What transpired when he did so constituted the principal area of dispute in the proceeding. The prosecution claimed that H was raped, whilst the appellant contended that he engaged in consensual intercourse or, at least, was at no stage aware that she may have consented.
The grounds
Grounds 1 and 2
I will address grounds 1 and 2 together.
The contention has been advanced that the sentencing judge denied to the appellant the full effect of his acquittal on the rape count by making findings that were inconsistent with it. It is also claimed under these grounds that he failed to identify adequately the evidentiary basis and reasoning process for a number of the findings of fact that he did make.
In his sentencing remarks, his Honour stated –
As indicated, the jury acquitted you of the count of rape. It seems to me that the likely explanation for the verdict is that the jury were not satisfied to the appropriate criminal standard, that you were aware that she was not consenting. As discussed with your counsel earlier today, for sentencing purposes that is all I need to say. Whether she was or was not consenting is beside the point.
I have victim impact statements that make it clear that her claim still as it was before the jury, was that she did not consent. I think it is likely that that is the case, but for present purposes all I need to say is that the jury were not satisfied that you knew she was not consenting. Accordingly, they acquitted you of a count of rape but returned a verdict of guilty on the alternative count of engaging in an act of sexual penetration with the victim.
…
There are some circumstances which in my opinion, mean that this offence is not amongst the bottom of the range. Firstly you were not known to each other. You took advantage of her isolation and vulnerability. If you believed that she was consenting, which of course is the basis upon which I must sentence you, you nevertheless knew that her consent was given at a time when she was isolated and vulnerable. You had no relationship with her. You hardly knew her. Sexual contact with children is not allowed by the law, and is always in my opinion, a serious offence.
I consider, on the basis of these and other remarks, made by his Honour that it is highly likely that he who, it must be borne in mind had heard all of the evidence in the trial and, in particular, had observed the complainant in the witness box, largely accepted her version of events. However, he made it clear that he well understood that, whatever may have been his personal views, it was incumbent upon him to sentence in accordance with the jury’s verdict. The argument was advanced before us that he fell into error in this respect. It was unrealistic, counsel contended, to interpret the verdict as representing other than a lack of satisfaction with the complainant’s evidence, which, if accepted, would undoubtedly have resulted in the appellant’s conviction on the count of rape. This was not a case, he argued, in which any question of the possible misunderstanding on the part of the appellant concerning the presence of consent might have arisen in the minds of the jury. In that situation, the conclusions made by his Honour set out in ground 2 were not open. As the verdict of the jury was consistent only with the rejection of the complainant’s evidence that she did not consent, the sentencing judge, accordingly, failed to give the appellant the full benefit of his acquittal on the rape count. The other findings to which reference was made in ground 2 reflected the same approach to the matter and, in making them, the judge fell into further error, it was submitted.
There can be no doubt, as I have earlier mentioned, that the sentencing judge understood that it was necessary for him to impose sentence in accordance with the verdict of the jury. It is also apparent from his comments that he was concerned to apply the principles set out in the joint judgment of Cheung v R[3] where it was said –
[3](2001) 209 CLR 1.
14In Isaacs[4] the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows:[5]
[4]Issacs (1997) 41 NSWLR 374, 377-378, (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ).
[5](2001) 209 CLR 1, 12-15, (Gleeson CJ, Gummow and Hayne JJ).
“1.Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury …
2.Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings …
3.The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury …
4.A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5.There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. … However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender …”
15Counsel for the appellant in the present case accepted the correctness of those propositions. However, as will appear, he contended for an additional proposition which would operate, in certain exceptional circumstances, of which the present case was said to be an example, as a qualification or rider to proposition 5. That suggested additional proposition will be examined below. To set the context for that examination, however, it is necessary to make further reference to principle.
16Proposition 2 is established by an abundance of authority, both in this Court and in other Australian courts, in relation both to State and Commonwealth offences. In relation to Commonwealth offences, it is perfectly consistent with s 80 of the Constitution. If it were otherwise, Savvas would have been wrongly decided. Section 80 mandates trial by jury in the case of trial on indictment of any offence against a law of the Commonwealth, but it does not alter the division of functions between judge and jury that is, and was in 1900, an aspect of the system of trial by jury. This is a subject to which it will be necessary to return. It suffices for the present to say that trial by jury in this country does not include sentencing by jury. In 1900, in Australia, as in England and the United States of America, the practice was that, after a verdict was given by the jury, the trial judge could hear evidence to determine the appropriate sentences. In Williams v New York Black J, delivering the opinion of the Court, said that:
“ … both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.”
17As to proposition 3, the required consistency is with the verdict, ie the decision of the jury upon the issue or issues joined for trial. It is at this point that the distinction between issues, facts relevant to an issue, and evidence, is important. Failure to observe that distinction is apt to cause confusion and error. If, as in the present case, a jury returns a general verdict upon a single count in an indictment, the resolution of issues which is express, or necessarily implied, in that verdict, is binding upon the sentencing judge. But the judge does not know the approach taken by the jury, or individual members of the jury, to particular facts relevant to the issues, or to the evidence of particular witnesses, except to the extent to which, by necessary implication, that is revealed by the verdict.
18In the course of oral argument, there was discussion about whether the trial judge could or should have questioned the jury about the process of reasoning by which they came to their verdict. For the reasons given in Isaacs there will be very few cases in which it is appropriate or useful to do that. Counsel for the present appellant disclaimed any suggestion that Badgery-Parker J should have done that in the present case. The judge was not asked to do so by trial counsel. Indeed, Badgery-Parker J was requested by trial counsel to undertake the task of finding the facts relevant to sentencing, including, in particular, the facts relating to the appellant’s role in the importation, and the motives with which he was acting.
19Reference was also made in the course of oral argument to the possibility of taking a special verdict from the jury. Again it was not submitted on appeal, or at trial, that this should have been done in this matter. It is, therefore, not necessary to consider whether a jury can be required, as distinct from invited, to return such a verdict or what it must contain.
20Bearing in mind that the principal matter relied upon by the appellant, in the sentencing proceedings, by way of mitigation, was his assertion as to the benign motive with which he became involved in the importation, and bearing also in mind that the presence or absence of that motive was not an element of the offence charged, and was not a matter upon which issue was joined for resolution by the jury it is impossible to understand what course was open to the judge but to decide that question for himself. Not only were the sentencing proceedings conducted by both sides upon the basis that he should do so; no other course was available to him. (Footnotes omitted)
Here, the question having been raised by counsel for the appellant who initially submitted that the verdict had to be interpreted as involving the rejection of the complainant’s evidence that the intercourse was non-consensual, the judge directed attention in the course of the hearing to the possible bases upon which it may have been reached. He specifically drew counsel’s attention to the one which found favour in his mind –
HIS HONOUR: There were three issues before the jury, as you are aware, and it would be open to interpret the verdict as saying the jury were not satisfied beyond reasonable doubt that he knew she wasn’t consenting.
COUNSEL: That is a possibility.
HIS HONOUR: It certainly is. It was a very live possibility, if I remember correctly, the significant issue argued before the jury.
COUNSEL: I have said that, Your Honour. I suppose having the delay between the case and other things on, I haven’t really thought that through but I agree with that, that is open to Your Honour, but …
HIS HONOUR: … from the point of view of sentencing, I am not sure that it makes any difference to me as to whether or not – the facts on sentencing process are a matter for me now and as long as they are, any finding I make is consistent with the jury’s verdict and I would have thought that there are two versions possible, open to me, one is that the jury was not satisfied that she did not consent, which is what you put a moment ago, or alternatively, that the jury is not satisfied that he knew she wasn’t consenting. From the point of view of a sentence, I am not sure that it makes any difference to him because I have got to sentence him on the basis of the culpability of his act and if they weren’t satisfied that he knew she wasn’t consenting, it does not make much difference to the assessment of that as to whether in fact she was consenting or not.
COUNSEL: I suppose, just to thrash that out a bit more, Your Honour could be more heavily influenced by the victim impact statement if you took the more favourable view to the complainant. Your Honour might then give greater weight to the impact upon the victim than the jury might have been prepared to apply if they had been able to make clear what it was that resulted in their rejection of count 1. I suppose we don’t know but I invite Your Honour not to ---
HIS HONOUR: The victim impact statements are written on the basis that the victim felt herself to have been raped and if she did not in fact consent then it is hardly surprising that the victim and her mother put the victim impact statements in those terms, but that does not really affect what I have got to do. I have got to sentence not on the basis of what the victims believed but what is established by the evidence and what findings are open to me …
It is noteworthy that the appellant’s counsel not only accepted that his Honour’s interpretation of the verdict was reasonably open in the circumstances, but also that the question; whether the Crown had established beyond reasonable doubt that the appellant was not aware that the complainant was not consenting, was ‘the significant issue argued before the jury.’ That this would have been the case is hardly surprising when it is borne in mind that it seems to have been accepted that H had just been raped by R. Nevertheless, we were invited to conclude that his Honour was in error and that the only reasonable view of the verdict was that the jury was not satisfied to the requisite standard that the appellant engaged in non-consensual intercourse with the victim.
As indicated in the passage above, the sentencing judge pointed out that there were, in effect, three substantial issues before the jury and that the most that could be stated with certainty by reference to the verdict was that the prosecution had not established that the appellant’s conduct constituted rape. Which of the available reasoning processes led them to this verdict could only be the subject of speculation. The problem with the appellant’s arguments in this Court is that they are premised on a proposition that ignores what was accepted by all concerned to have taken place at the trial.
The sentencing judge has also been criticised for his statement in the passage set out earlier –
I have got to sentence him on the basis of the culpability of his act and if they weren’t satisfied that he knew she wasn’t consenting, it does not make much difference to the assessment of that as to whether in fact she was consenting or not.
It may be possible in some circumstances, and viewed from the perspective of the perpetrator, to distinguish between the moral culpability of an offender who engages in prohibited sexual activity in a case where absence of consent is not established on the one hand, and one in which the absence of awareness of lack of consent arises, on the other. But that is not a question that needs to be explored in the present context. The judge concluded that, in the case before him, the distinction could lead to no different practical outcome. I agree.
His Honour has also been criticised on the basis that he did not adequately identify the evidentiary foundation and facts for sentencing. This complaint also lacks substance in my opinion. True it is that he indicated that he regarded much of the background material as of limited significance and did not address a number of the pieces of evidence in a contested trial, but it must be borne in mind that the Crown alleged at the trial that the appellant was guilty of rape and it is reasonable to assume that attention was directed to a range of circumstances and issues which were perceived as relevant to that count. It was not required in the circumstances of the particular case for the sentencing judge to address all of them. The responsibility of a sentencing judge with respect was the subject of attention in this Court in DPP v Suckling and Brougham[6] where Phillips CJ pointed out that –
… reasons for sentence may be of real interest to a variety of persons, including the members of an appellate court. They should, therefore, as a basic requirement, contain a clear statement of the facts upon which the sentence is based.[7]
[6][1999] VSCA 190.
[7]Ibid [2].
In the same case, in which I should add the sentencing judge’s remarks contained ‘not even a general statement of the relevant facts’, Tadgell JA stated –
A moment’s thought will show that an adequate expression of a judge’s sentencing remarks is of essential importance in the administration of justice in the widest sense. It will usually be convenient, if not necessary, in order to place the sentence in an intelligible context, that the judge should give at least a succinct statement of the relevant facts. This, of course, is not so much to inform the prisoner of what was done in the commission of the crime – for that in itself will seldom be required – as to record the facts upon which the judge has proceeded in formulating the sentence. The whole exercise, if it is to fulfil its proper function, will be carefully undertaken. The sentencing remarks should be expressed plainly, economically and with no unnecessary legalism.[8]
[8]Ibid [6].
Put at its simplest, his Honour imposed sentence on the basis that the appellant had sexual intercourse with a 15 year old girl, who he must have appreciated was quite ‘out of her depth,’ and in an ‘isolated and vulnerable’ situation. His Honour arrived at that conclusion at the end of a trial in which the circumstances under which the intercourse took place were canvassed and disputed. The findings of fact that he made were open to him and focussed upon considerations relevant to the determination of an appropriate sentence for the specific offence of which the appellant had been convicted. His statement of the background was brief but adequate in the circumstances. There is no uncertainty as to the evidentiary foundation for the sentence imposed and nothing further needed to be said.
Ground 3
There is no substance in the complaint that H was aged nearly 16 years at the time of the offence and that the sentencing judge placed excessive weight on the age difference between the appellant and H. The age of the victim of such an offence cannot, in my opinion, of itself constitute a mitigatory factor for sentencing purposes, although it may, in some situations be seen to aggravate its commission. The offence was created by Parliament to provide protection to young persons. That protection is not to be regarded as becoming less significant simply because the young person is
approaching his or her sixteenth birthday. On the other hand, the younger, more vulnerable or less mature the victim is, the more heinous is the perpetrator’s behaviour. The disparity in the ages of the offender and the child is, accordingly, a relevant consideration. Although the judge in the present case accepted that the appellant was relatively immature given his age of 27 years, his Honour commented in his sentencing remarks –
[T]his is a serious example of a serious offence. There is a great range of culpability associated with this offence, but in my opinion this is by no means at the bottom of that range. I say that because of the age difference between yourself and the girl. [Counsel] emphasised that she was only 16. She was still very young. You must understand that taking children as sexual partners is highly illegal and regarded as a serious offence.
Ground 4
The sentence which could reasonably be described as lenient, bearing in mind the appellant’s age and the general circumstances in which the offending took place, does not bespeak error. Even if the errors attributed to his Honour had been committed, they could not be seen to have been reflected in the sentence handed down and certainly there has been no miscarriage of justice.
I would dismiss this appeal.
REDLICH JA:
An accused must receive the ‘full benefit of his or her acquittal’[9] to comply with the fundamental principle that a verdict of acquittal cannot be controverted.[10] This principle was engaged as a consequence of the jury’s acquittal on the count of rape.[11] It was submitted that the learned sentencing judge denied him the full benefit of his acquittal on this count by acting upon a finding that the complainant had not consented to intercourse in sentencing him on the second count.
[9]R v Storey (1978) 140 CLR 364.
[10]Rogers v The Queen (1994) 181 CLR 251; Island Maritime v Filipowski (2006) 226 CLR 328; AJS v The Queen (2007) HCA 27 (Gleeson CJ, Hayne, Heydon and Crennan JJ).
[11] As to the full benefit of his acquittal, see R v VN (2006) VSCA 111, [80]–[86].
It is clear enough from the transcript of the plea in mitigation and the reasons for sentence that his Honour was of the view that the acquittal of the appellant on the count of rape was consistent with the jury being satisfied that the complainant had not consented to intercourse with the appellant but was not satisfied that the crown had established that the appellant had the necessary mens rea.
It is commonplace for a sentencing judge to make findings which bear significantly upon the offender’s culpability, and which, while consistent with the jury verdict, will not necessarily have been resolved by the verdict.[12] The verdict of a jury may leave unresolved, large questions as to the offender’s degree of culpability. It is only the resolution of those factual issues which are necessarily implied in the jury’s verdict that bind the sentencing judge.[13] Thus the primary constraint upon the power and duty of the sentencing judge is that the view of the facts adopted for purposes of sentencing must be consistent with the verdict of the jury, and if it be a finding against the offender, must be arrived at beyond reasonable doubt.[14]
[12]Cheung v R (2001) 209 CLR 1, [5] (Gleeson CJ, Gummow and Hayne JJ).
[13]Ibid [17] (Gleeson CJ, Gummow and Hayne JJ).
[14]Ibid [14] (Gleeson CJ, Gummow and Hayne JJ).
Where the accused has been acquitted of an offence, a fact relating to that offence may be relied upon in relation to another offence[15] so long as the acquittal does not give rise to an inference that the particular fact was negatived by the jury so as to make that fact a res judicatum. In those circumstances the fact will not infringe the principle that the accused should be given the full benefit of his acquittal. Were the law otherwise, an offender could not be sentenced for a lesser alternative charge to the charge on which the offender was acquitted.[16]
[15]Whether on the same presentment or in another trial, see R v Carroll (2002) 213 CLR 635, 651 [50]; Washer v The State of Western Australia (2007) HCA 48 [5] [32], (Gleeson CJ, Heydon and Crennan JJ), R v Storey (1978) 140 CLR 364, 372-373.
[16]As to the returning of a lesser alternative verdict, see AJS v The Queen (2007) HCA 27 [2], s 421(2) Crimes Act 1958 (Vic).
Counsel for the appellant submitted that the consequence in law of the appellant’s acquittal was that he was presumed innocent of the allegation of non-consensual sex so that his Honour was not permitted to find that the complainant had not consented to intercourse. Any other view of the facts controverted his acquittal on the count of rape. That submission cannot be sustained. As the verdict was consistent with the jury not being satisfied that the appellant had the necessary mens rea, it was open to the sentencing judge to find that the complainant had not consented. If the sentencing judge was satisfied of that fact beyond reasonable doubt, it could be taken into account in sentencing the appellant on count 2. To do so would not thereby have denied the appellant the full benefit of his acquittal as reliance upon her lack of consent would not be for the purpose of establishing the appellant’s guilt on the charge on which he was acquitted.
Although it was open to his honour to have sentenced on the basis that the complainant did not consent, I agree with Vincent JA that it has not been shown that he did so.
For the reasons given by Vincent JA I would dismiss the appeal against sentence.
KELLAM JA:
I have had the advantage of reading in draft the reasons for judgment of Vincent JA. I agree, for the reasons which his Honour gives, that the appeal should be dismissed.
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