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Sadrani v The Queen

Sadrani v The Queen

Case [2015] VSCA 202 23 July 2015

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0246

ATUL SADRANI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2015
DATE OF JUDGMENT:	23 July 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 202
JUDGMENT APPEALED FROM:	DPP v Sadrani (Unreported, County Court of Victoria, Judge Chettle, 23 October 2014)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (2 charges), indecent assault (2 charges) – Sentence 4y 6m, non-parole period 2y 6m – Whether manifestly excessive – Age difference – Breach of trust – Vulnerable victim – Plea of guilty – Rehabilitation – Importance of general deterrence – Appeal dismissed – Crimes Act 1958 ss 39, 45(1).

PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Consideration by single judge on papers – Leave refused except on one charge – Written reasons given – Election to renew application – Need for proper basis for renewal – Criminal Procedure Act 2009 s 315(2) – Supreme Court (Criminal Procedure) Rules 2008 r 2.08.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George
For the Respondent	Ms D I Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

MAXWELL P:

On 16 October 2014, the appellant, who is now aged 45, pleaded guilty to two charges of indecent assault and two charges of sexually penetrating a child under 16. On 23 October 2014, he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Indecent assault 10y 9m 6m

2 Sexual penetration of a child under 16 10y 3y Base

3 Sexual penetration of a child under 16 10y 2y 12m

4 Indecent assault 10y 6m -

Total Effective Sentence: 4y 6m

Non-Parole Period: 2y 9m

Pre-sentence Detention Declared: 7 days

6AAA Statement: 5y 6m with non-parole period of 3y 6m

Other orders: Forensic sample order, registrable sex offender — life reporting period. Sentenced as a serious sexual offender in respect of charges 3 and 4, s 6F Sentencing Act1991.

The appellant sought leave to appeal on the following grounds:

(a)the sentencing judge erred in finding that the offending constituted ‘high level examples of the offence of indecent assault and sexual penetration of a child’; and

(b) the sentences imposed on the individual charges and the orders for cumulation:

(i) were manifestly excessive;

(ii) were outside the range reasonably open; and

(iii) resulted in a total effective sentence and non-parole period that were manifestly excessive.

A judge of this Court granted leave on both grounds but in respect only of charge 1. The appellant subsequently elected, as he was entitled to do, to renew his application for leave to appeal with respect to the other charges.

For reasons which follow, I would dismiss the appeal and refuse the renewed application for leave.

The right of election

Our appeal procedures make provision for a person, whose application for leave has been considered on…

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 Sadrani v The Queen

Details

AGLC: Sadrani v The Queen [2015] VSCA 202
Case: [2015] VSCA 202
Decision Date: 23 July 2015

CaseChat Overview and Summary

The case of Sadrani v The Queen involved the appellant who had been found guilty of two charges of sexual penetration of a child under 16 years of age and two charges of indecent assault. The appellant was sentenced to a total of four years and six months imprisonment, with a non-parole period of two years and six months. The central issue before the court was whether the sentence was manifestly excessive, taking into account the age difference between the appellant and the victim, the breach of trust, the vulnerability of the victim, the appellant's guilty plea, the prospects of rehabilitation, and the importance of general deterrence.

The court considered the legal principles governing sentencing in criminal cases and the relevant statutory provisions, including sections 39 and 45(1) of the Crimes Act 1958. The court noted that the sentencing judge had considered all relevant factors and had exercised their discretion within the range of reasonable outcomes. The court found that the sentence was not manifestly excessive and dismissed the appeal on all but one charge. The court also considered the procedural aspects of the appeal, including the application for leave to appeal and the need for a proper basis for the renewal of the application, in accordance with the Criminal Procedure Act 2009 and the Supreme Court (Criminal Procedure) Rules 2008.

The court held that the sentence was not manifestly excessive, and dismissed the appeal except in relation to one of the charges. The court did not consider it necessary to order a re-sentencing hearing, as the sentence was within the range of reasonable outcomes. The court also noted that the appellant had not provided a sufficient basis for the renewal of the application for leave to appeal, in accordance with section 315(2) of the Criminal Procedure Act 2009 and rule 2.08 of the Supreme Court (Criminal Procedure) Rules 2008. The final orders of the court were that the appeal was dismissed except in relation to one charge, and the appellant was given leave to appeal on that charge only.

Orders