R v Sulemanov - [2007] VSCA 288

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…

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 Sulemanov

Details

AGLC: R v Sulemanov [2007] VSCA 288
Case: [2007] VSCA 288
Decision Date: 11 December 2007

CaseChat Overview and Summary

The appeal against sentence in the case of R v Sulemanov involved the appellant, found guilty of engaging in an act of sexual penetration with a child under the age of 16. The dispute centred on whether the sentencing judge correctly applied the jury's verdict and whether the appellant received the full benefit of his acquittal on a more serious charge of rape. The case was heard by the Court of Appeal.

The primary legal issues addressed were whether the sentencing judge was correct in sentencing the appellant based on the premise that the complainant did not consent and whether the judge adequately identified the evidentiary foundation and facts for the sentencing. Additionally, the court examined if the judge appropriately weighed the complainant's age, which was nearly 16 at the time of the offence, and whether too much emphasis was placed on the age difference between the appellant and the complainant. The appellant argued that the sentence was manifestly excessive.

In its reasoning, the court held that the sentencing judge was entitled to sentence the appellant on the basis that the complainant did not consent and did not err in his assessment of the evidence and facts. The court found that the sentence did not inadequately weigh the complainant’s age and did not place excessive weight on the age difference. The court concluded that the sentence was not manifestly excessive, and the appeal was dismissed. The court upheld the sentence imposed by the trial judge.

Orders