Rezaei v The King

Case [2024] SASCA 150

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

REZAEI v THE KING

[2024] SASCA 150

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice Stanley and the Honourable Justice B Doyle)

19 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against conviction and application for permission to appeal against sentence.

On 3 November 2023, a jury found the appellant guilty, by majority, of five counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (counts 1, 3, 4, 5 and 6), one count of aggravated threatening to cause harm contrary to s 19(2) of the CLCA (count 7) and one count of threatening to distribute an invasive image contrary to s 26DA(1) of the Summary Offences Act 1953 (SA) (count 2). The jury unanimously found the appellant guilty of one count of threatening a person involved in a criminal investigation, contrary to s 248(1) of the CLCA (count 8).

On 20 May 2024, the trial judge sentenced the appellant to a head sentence of 24 years and six months imprisonment, with a non-parole period of 19 years, seven months and seven days imprisonment. This was reduced to a final head sentence of 21 years and 10 months, with a non-parole period of 16 years, 11 months and seven days given time served in custody and on home detention.

On the application for permission to appeal against sentence, the appellant raised one issue, being that the sentences imposed were manifestly excessive.

On the appeal against conviction, the appellant raised four grounds concerning the adequacy of the trial judge’s directions to the jury:

1.whether the judge erred in law or caused a miscarriage of justice by failing to direct the jury as to the use they could make of evidence relating to each charged allegation in respect of each other charge (Ground 1);

2.whether the judge failed to give adequate directions relating to the evidence of the accused so as to cause a miscarriage of justice (Ground 2);

3.whether the judge erred in law in failing to give a forensic disadvantage direction in accordance with s 34CB of the Evidence Act 1929 (SA) (‘Evidence Act’) on account of the imprecision of the timing and circumstances of the allegations comprising counts 3 to 6 inclusive (Ground 3); and

4.whether the judge gave inadequate directions on a motive to lie such as to cause a miscarriage of justice (Ground 4).

In respect of Ground 1, the appellant’s complaint was that while the trial judge’s directions correctly and adequately warned the jury against impermissible reasoning…

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Rezaei v The King [2024] SASCA 150
Case
[2024] SASCA 150
Decision Date

CaseChat Overview and Summary

This case concerned an appeal against conviction and sentence brought by the appellant, Rezaei, against The King. The appellant was convicted of multiple offences, including rape and filming himself committing the offence with threats of distribution. The appeal against conviction primarily focused on alleged misdirections or non-directions by the trial judge to the jury regarding the use of evidence. The appeal against sentence argued that the total effective sentence imposed was manifestly excessive.

The legal issues before the court were whether the trial judge erred in law or caused a miscarriage of justice by failing to adequately direct the jury on the use of evidence relating to each charged allegation in respect of the other charges. This included considering the cross-admissibility of evidence on propensity grounds and as evidence of consciousness of guilt. Additionally, the court had to determine if the cumulative sentences imposed for the various offences were manifestly excessive, considering the nature of the offending and the appellant's status as a serious repeat offender.

The Court of Appeal granted permission to appeal on one ground relating to the jury directions but ultimately dismissed the appeal against conviction on that ground. Permission to appeal on other grounds concerning conviction was refused. Regarding the sentence appeal, the court acknowledged the appellant's submission that a significant period of punishment was warranted but found that the total effective sentence of 21 years and 10 months, with a non-parole period of 16 years, 11 months and 7 days, was not manifestly excessive given the gravity and multiplicity of the offences, and the appellant's history. The court refused permission to appeal against sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

IS was cross-examined to the effect that in relation to the call on 18 July 2020, he told friends that he had just had a call from one of his family members, and that was the truth. He said that he could not tell his friends the story and he did not know what to do.The defence evidence The appellant gave evidence to the effect that he had had a consensual affair with the complainant. He confirmed that he had on one occasion taken IS to the airport and that he had visited the complainant at Scotty’s Motel on a number of occasions. He gave her financial assistance and the use of his car. He said that while the complainant was staying at Scotty’s Motel, she would go out with him, leaving the children at the motel. The appellant said he would meet the complainant for her to give him money to transfer to her mother in Iran. He recalled two or three occasions when they met at a shopping centre near Ingle Farm for this purpose. The appellant gave evidence that after an accident at work on 10 August 2017, he had separated from his partner. He said that at the beginning of 2018, there was a physical element to his relationship with the complainant. This was mainly limited to kissing, touching and hugging at her house and in the car. In 2019 this included at Ingle Farm shopping centre. Following the accident, he suffered from erectile dysfunction. He told the complainant this in late 2017 and early 2018. Their relationship drifted apart after he saw her kissing another man. On a fishing trip, he told IS and some other friends that he was going to marry someone in Iran. After that, the complainant phoned him repeatedly. They eventually spoke on 18 July 2020. The complainant asked him why he was going to marry in Iran. Later that night, he was arrested. The appellant said that on 18 July 2020, he was on the phone to people in Iran via WhatsApp ‘nonstop’. The appellant denied raping the complainant, filming himself doing so and threatening to distribute any image. The defence called a friend of the appellant, SK, who gave evidence of observations of the complainant dancing and point to the appellant during a song ‘Gentleman’. The appellant’s daughter gave evidence of seeing messages on the complainant’s phone that suggested a relationship between the appellant and the complainant. She confronted the complainant who told her to keep quiet and that it was none of her business.The appeal Whether the judge erred in law or caused a miscarriage of justice by failing to direct the jury as to the use they could make of evidence relating to each charged allegation in respect of each other charge (Ground 1) The appellant’s starting point with respect to this ground was that the evidence of each count was clearly admissible in respect of the other counts. For example, the evidence relating to count 1 was admissible in relation to count 2 for the purpose of establishing the occasion on which the images the subject of count 2 were created. Then, the evidence of each of counts 1 and 3-6 was cross‑admissible as to each other of those counts on a propensity basis. The appellant also submitted that the evidence relating to count 8 ‘could arguably have been admissible’ on counts 1-7, as post-offence conduct demonstrating a consciousness of guilt. These examples do not exhaust the possible bases of cross‑admissibility that the appellant identified.

Decision

Reasons for decision

We refuse permission to appeal on Ground 4.Conclusion on the appeal against conviction Permission to appeal on Ground 1 already having been granted, we dismiss the appeal on that ground. We grant permission to appeal on Ground 2 but dismiss the appeal on that ground. We refuse permission to appeal on Grounds 3 and 4. We dismiss the appeal against conviction.The appeal against sentence The sole ground of appeal against sentence is that the sentences imposed were manifestly excessive. The judge imposed the following sentences:·count 1: 10 years’ imprisonment;·count 2: four months’ imprisonment;·counts 3 and 4: 10 years’ imprisonment for each offence, partially concurrent to the extent of eight years, resulting in an effective sentence of 12 years’ imprisonment. That sentence was made concurrent with the sentences imposed for counts 1 and 2, to the extent of three years, resulting in a sentence of 19 years and four months.·counts 5 and 6: 10 years’ imprisonment for each offence, partially concurrent to the extent of eight years, resulting in an effective sentence of 12 years’ imprisonment. That sentence was made concurrent with the effective sentence for counts 3 and 4 to the extent of eight years, resulting in a sentence of 23 years and four months;·count 7: six months’ imprisonment, cumulative upon the other sentences;·count 8: eight months’ imprisonment, cumulative on the other sentences. The total effective head sentence was therefore 24 years and six months’ imprisonment. The judge considered that there was no basis to further reduce that period for totality. The appellant was, by reason of the multiple offences, a serious repeat offender. The judge accordingly fixed a non-parole period of 19 years, seven months and seven days. The judge reduced the sentence by two years and eight months for time spent in custody and on home detention. The final head sentence imposed was 21 years and 10 months, with a non-parole period of 16 years, 11 months and seven days. It is not necessary to rehearse the principles relating to a complaint of manifest excess. The appellant accepted that a long period of punishment was called for. He submitted, however, that the gravamen of the offending was the rapes. He accepted that the threats merited their own punishment but submitted that they were closely connected with the rapes. He did not submit that there was anything special about his personal circumstances that warranted extraordinary leniency; neither did he have a criminal history that would have denied him any leniency available to a first-time offender. Having said that, the rapes occurred over a considerable period of time, against a background of a course of offending conduct. The appellant observed that the final sentence was more than double the sentence indicated in R v D.[34] While he accepted that there was no standard to be applied, he submitted that the sentence was ‘out of step’ with cases of ongoing child abuse. In this regard he referred to R v F, AD[35] and R v Cashion.[36][34] (1997) 69 SASR 413.[35] [2015] SASCFC 130.[36] [2014] SASCFC 138.

Ratio Decidendi

Legal Principle Established

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