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Rezai v The Queen

Rezai v The Queen

Case [2020] VSCA 106 5 May 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0244

ABBAS REZAI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	5 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 106
JUDGMENT APPEALED FROM:	DPP v Rezai (Unreported, County Court of Victoria, Judge Marich, 12 December 2019)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault – Sentenced to 9 months’ imprisonment and 2 year community correction order – Whether sentence manifestly excessive – Exceptional circumstances – Hardship on applicant’s family – Whether sentencing judge erred in finding jury accepted complainant’s account and rejected applicant’s account – Sentence within range – Leave to appeal refused – Markovic v The Queen (2010) VR 589 referred to.

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Ms N Karapanagiotidis	Emma Turnbull Lawyers
For the Respondent	Mr G Barr	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
T FORREST JA:

Introduction

The applicant was tried in the County Court at Melbourne on one charge of rape and, as an alternative, one charge of sexual assault. The jury convicted him on 28 June 2019 of sexual assault. On 12 December 2019, he was sentenced to nine months’ imprisonment, together with a community correction order (‘CCO’), which is valid for two years with various conditions, including 100 hours of community work to be performed, supervision, and assessment and treatment related to mental health.

The applicant has filed three grounds of appeal against sentence. Those grounds are:

Ground 1:The sentence imposed was manifestly excessive in all the circumstances.
Ground 2:The learned sentencing judge erred in the exercise of her discretion in finding that exceptional circumstances had not been established to warrant consideration of the hardship to the applicant’s family.
Ground 3:The learned sentencing judge erred in finding that the jury had accepted the complainant’s account and rejected the applicant’s account.

Circumstances of offending

The applicant was aged 23 at the time of offending. The victim, KI, was aged 30. On 17 December 2017, the applicant was working as a crowd controller at the Carlton Club bar on Bourke Street, Melbourne. At around 2 am, KI decided to leave the venue. She left her friends and walked to the stairwell of the building. As she walked down those stairs from level three, the applicant was ahead of her, also walking down the stairs. Both reached the landing on level two at around the same time. The applicant approached KI from behind and briefly placed his hand under her dress and touched her vagina. This conduct was captured on CCTV and exhibited at the applicant’s trial.[1] KI confronted the applicant. He beckoned her to accompany him to a room leading off the landing and said, ‘Come here and have some fun with me.’
[1]Exhibit A at the trial.

KI refused and pushed the applicant away. KI went back upstairs and reported the incident to a security guard. She…

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 Rezai v The Queen

Details

AGLC: Abbas Rezai v The Queen [2020] VSCA 106
Case: [2020] VSCA 106
Decision Date: 5 May 2020

CaseChat Overview and Summary

In the case of Rezai v The Queen, the appellant, Rezai, sought to appeal his sentence for sexual assault. The case was heard in the Supreme Court of Victoria. Rezai had been sentenced to nine months’ imprisonment and a two-year community correction order. The appeal focused on whether the sentence was manifestly excessive, the presence of exceptional circumstances, and the hardship faced by the applicant’s family. Additionally, the appeal questioned the sentencing judge’s determination that the jury accepted the complainant’s account and rejected the applicant’s account.

The central legal issue revolved around whether the sentence imposed was within the appropriate range given the circumstances of the case. The appellant argued that the sentence was manifestly excessive, citing exceptional circumstances and the hardship experienced by his family. Furthermore, the appellant contested the sentencing judge's finding that the jury accepted the complainant’s account over his own. The court was required to determine if these contentions warranted a reduction in the sentence or if the original sentence was appropriate.

The Supreme Court of Victoria, in dismissing the appeal, held that the sentence was within the appropriate range and that there were no exceptional circumstances that warranted a departure from the sentence. The court also upheld the sentencing judge’s finding that the jury accepted the complainant’s account over the applicant’s. The court referred to the precedent set in Markovic v The Queen (2010) VR 589, which provided guidance on the principles of sentencing and the appellate court’s role in reviewing such matters. Ultimately, the court found that the sentence was not manifestly excessive and that the sentencing judge had correctly considered the evidence and circumstances of the case.

The Supreme Court of Victoria refused leave to appeal, thereby upholding the original sentence. The court’s decision emphasized the importance of adhering to the principles of sentencing and the appellate court's limited role in reviewing such decisions. The judgment highlighted the need for the court to ensure that the sentence is within the appropriate range and that there are no exceptional circumstances that warrant a departure from the sentence.

Orders