Sepehrnia v The King - [2024] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0091

TAHA SEPEHRNIA	Appellant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 149
JUDGMENT APPEALED FROM:	[2022] VCC 942 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Making threats to kill, prohibited person in possession of imitation firearm, rape and recklessly causing injury – Total effective sentence 13 years 4 months – Whether sentence infringed principle of totality – No error in sentencing judge’s appreciation or application of principle of totality – Whether orders for cumulation and total effective sentence manifestly excessive – Sentence and orders for cumulation within range – Appeal dismissed.

Sentencing Act 1991, s 6D.

Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v Jones [2004] VSCA 68, considered.

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Counsel
Appellant:		Mr PJ Smallwood with Mr JD Cleveland
Respondent:		Ms S Lenthall
Solicitors
Appellant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

On 17 June 2022, the appellant was sentenced by a judge in the County Court to a term of imprisonment of 13 years and 4 months for serious sexual and other offending against two former intimate partners, Violet Wallace and Dawn Pena.[1]
[1]To avoid the possibility of identifying the alleged victims of sexual offences, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the complainants.
The offending involved two charges of rape,[2] three charges of make threat to kill,[3] one charge of prohibited person in possession of an imitation firearm,[4] and one charge of cause injury recklessly.[5] The plea proceeded by way of an agreed prosecution summary. The appellant gave evidence on his plea, called oral character evidence from two witnesses and tendered a psychologist report authored by Mr Jeffrey Cummins.
[2]Contrary to Crimes Act 1958, s 38(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[3]Contrary to Crimes Act 1958, s 20.
[4]Contrary to Control of Weapons Act 1990, s 5AB(2).
[5]Contrary to Crimes Act 1958, s 18.
The following table shows the structure of the sentence:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Make threat to kill	10 years	2 years	4 months
2	Prohibited person in possession of an imitation firearm	10 years / 1,200 penalty units	1 year and 3 months	2 months
3	Rape	25 years	7 years	4 years
4	Make threat to kill	10 years	1 year and 6 months	4 months
5	Make threat to kill	10 years	3 years	9 months
6	Rape	25 years	7 years and 6 months	Base
7	Causing injury recklessly	5 years	1 year	3 months
Total Effective Sentence:		13 years and 4 months’ imprisonment
Non-Parole Period:		9 years and 4 months
Pre-sentence Detention Declared:		1,068 days
Section…

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.

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Details

Case: [2024] VSCA 149
Decision Date: 27 June 2024

CaseChat Overview and Summary

The appeal in Sepehrnia v The King involved the appellant, Sepehrnia, who was convicted and sentenced for multiple serious criminal offences. The appellant was found guilty of making threats to kill, being a prohibited person in possession of an imitation firearm, rape, and recklessly causing injury. The case was heard and determined in the Court of Appeal. The central issue before the court was whether the sentence and orders for cumulation imposed by the sentencing judge were appropriate, particularly in relation to the principle of totality.

The court had to consider whether the sentence and orders for cumulation manifestly exceeded what was appropriate, and whether there was any error in the sentencing judge's appreciation or application of the principle of totality. The principle of totality ensures that the cumulative effect of multiple sentences does not result in an excessive overall punishment. The court meticulously reviewed the sentencing judge's approach to ensure it adhered to this principle, examining the severity and proportionality of the sentence relative to the crimes committed.

After a detailed analysis, the court found that the total effective sentence of 13 years and 4 months, along with the orders for cumulation, did not manifest an error in the sentencing judge's application of the principle of totality. The court determined that the sentence and orders for cumulation fell within the appropriate range, taking into account the gravity of the offences. Consequently, the appeal was dismissed as there was no basis to interfere with the sentence imposed by the primary judge.

The final orders of the court confirmed the dismissal of the appeal, upholding the sentence and orders for cumulation as correctly applied by the sentencing judge. The court's decision emphasised the importance of ensuring that the overall punishment remains proportionate and just, in line with the principle of totality.

Orders