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
1	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. 
2	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 
3	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.  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.’
4	KI refused and pushed the applicant away.  KI went back upstairs and reported the incident to a security guard.  She became distraught.  Police were called to the venue and a report was made. 
	The reasons for sentence 
5	The judge set out the circumstances of offending in similar terms to those above.  She said:
You gave evidence in your trial, and testified that you lay down on your left hand side to hold the rail of the stairway and ask the complainant if she was ok.  You testified that you did not touch her at all, perhaps accidentally touched her clothing, but you did not put your hand under her dress.  By its verdict, the jury rejected your account, and separately accepted the account of the complainant.
6	Her Honour referred to the complainant’s victim impact statement, and accepted that KI had experienced distress and trauma as a consequence of the applicant’s actions.
7	The judge set out the applicant’s personal circumstances.  In short:
•	The applicant was 23 years old at the time of offending and 25 at the time of sentence. 
•	The applicant was born in Kandahar, Afghanistan.  He is of Hazara ethnicity and the Shia Muslim religion.
•	As a young person, the applicant was raised by loving parents in a volatile, insecure environment.  Two of his brothers were murdered by the Taliban.  His sister died when she was 17 years old and another brother is missing.
•	His family fled to Pakistan in 2010 and lived in an overcrowded and dangerous refugee camp.  He came alone to Australia by boat and was held at Christmas Island in January 2011 for approximately eight months.  He was then aged around 16.  He was found to be a refugee and released into the community.  He readily obtained work both in Sydney and Brisbane before moving to Melbourne in 2018.
•	In 2014, he travelled to Pakistan and married a woman of Pakistani Hazara ethnicity.  His attempts to sponsor her to come to Australia have been delayed by this criminal proceeding.
•	His father died in 2017.  His mother remains living in Pakistan with his younger siblings and cousins.  The applicant has been their sole source of income.
•	The applicant worked continuously since coming to Melbourne in 2018.
•	He has never used illicit substances or alcohol.
8	In 2019, after being charged and losing his security licence, the applicant was treated on approximately 25 occasions by a psychologist for anxiety and depression.  A report from a different consulting psychologist, Mr Ian McKinnon, was tendered on the plea.  The judge accepted Mr McKinnon’s diagnosis of Post Traumatic Stress Disorder, arising from the general violence and community fear that were part of his childhood and early adolescence.  This opinion was supported by Dr Prashant Pandurangi of Forensicare, who also considered that at the time of interview, the applicant presented with depressive symptoms, anhedonia and suicidal ideations.
9	Her Honour accepted that, in accordance with the decision of the High Court in Bugmy v The Queen, the applicant’s difficult and perilous childhood operated to mitigate the sentence which would otherwise be appropriate.  The judge also accepted that factors 5 and 6 in R v Verdins were engaged.  It follows that the judge found that the applicant’s mental condition meant that any sentence of imprisonment imposed would weigh more heavily upon the applicant than a person in normal health.  It further follows that the judge found that there was a serious risk that imprisonment would have a significant adverse effect on the applicant’s mental health.  The judge stated that she accorded ‘considerable mitigatory weight’ to Verdins factor 5 and ‘allowed for mitigation’ of sentence on the basis of Verdins factor 6.
10	Her Honour stated that two further mitigatory factors existed so that the sentence imposed would weigh more heavily on the applicant:
(a)	anxiety and uncertainty as to the applicant’s visa status and his eligibility to sponsor his wife’s visa application; and
(b)	a sentence of immediate imprisonment would cause hardship to his wife, mother and other family members, who the applicant supported emotionally and financially.
11	Whilst the judge took into account the mitigatory factor in paragraph 10(b) as a factor that would cause imprisonment to weigh more heavily on the applicant, her Honour rejected the applicant’s submission that the hardship to the applicant’s wife and family was in itself a direct mitigating circumstance.  Her Honour noted, correctly, that hardship to a third party as a consequence of imprisonment is not normally a mitigating circumstance unless there existed ‘highly exceptional’ circumstances.  The judge was not satisfied that this case fell into that category.
12	The judge took into account in the applicant’s favour his comparative youth, his lack of any prior or subsequent criminal history, and character references which were tendered on the plea.  Her Honour found that ‘aside from the current offence, [the applicant was] a person of good character’, and after considering the psychological evidence, she concluded that his prospects for rehabilitation were good.
13	The judge accepted that this was a ‘momentary lapse in judgment in the context of an otherwise resilient, hardworking and blameless life’.  
14	The judge stated that this was a serious example of the offence of sexual assault.  The applicant was in a position of paid responsibility towards the complainant, but took advantage of her in a most ‘intimate, embarrassing, traumatic and entitled way’:
She was an object for your gratification in that minute.  She did not even know that you were behind her, and was not even given the opportunity to defend herself from your urge to touch her.  This is the type of incident that creates fear and disgust in women that they are never safe from opportunistic sexual violation, and it arouses disappointment and disgust in the rest of the community that no one is ever completely safe from offending such as yours.
15	Her Honour took into account deterrence (both general and specific), punishment and denunciation, ‘whilst allowing for [the applicant’s] continued rehabilitation’.  
16	The judge rejected the applicant’s submission that a CCO alone with various conditions would be an appropriate penalty.  She stated that the sentence she imposed had been moderated in ‘reflection of the matters relied upon by [defence] counsel’.
	This application 
17	We shall consider grounds 2 and 3, both of which allege specific error, before considering ground 1, which alleges manifest access. 
	Ground 2 — Hardship to the applicant’s family established exceptional circumstances
18	This ground alleges that her Honour erred in failing to find exceptional circumstances when considering whether a custodial sentence would impose hardship to the applicant’s family.  We have set out some of the aspects of family hardship earlier in these reasons.  In short, the applicant contended that the following combination of factors established exceptional circumstances:
•	The applicant’s family had originally fled Afghanistan to Pakistan, seeking asylum.
•	The applicant arrived in Australia as an unaccompanied minor in 2011 and was subsequently found to be a refugee.
•	The applicant married overseas.
•	The applicant’s wife, mother, younger siblings and cousins all resided together unlawfully in Pakistan.
•	The application to sponsor the applicant’s wife has been significantly delayed as a result of these proceedings.
•	The family in Pakistan had no formal entitlements and were completely reliant on the income provided by the applicant.
•	The applicant’s father died in 2017.
•	The applicant’s mother was hospitalised at the time of the plea and in need of medication paid for by the applicant.
•	The younger siblings and cousins were children.
•	There was uncontested evidence before the court confirming that the applicant provided regular and substantial financial support to his family.
19	In order for family hardship to operate directly as a mitigatory factor upon penalty, the degree of hardship created by the incarceration of an offender must be exceptional.  Hardship to family and dependents is an unavoidable consequence of imprisonment, and unless genuinely ‘exceptional’, it will not constitute a mitigating factor.  In R v Panuccio, Winneke P (with whom Brooking and Charles JJA agreed) stated:
Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be ‘exceptional’ or ‘extreme’ before the court will tailor its sentence in order to relieve the plight of those other family members.  Such a principle is clearly an obvious one, because the court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced.  There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.
This statement of principle was confirmed in Markovic v The Queen.
20	We are not satisfied that her Honour erred in declining to accept this ‘exceptional circumstances’ argument.  The difficult early years of the applicant’s life were properly taken into account by the judge and said to mitigate the sentence otherwise appropriate in accordance with the principles set down in Bugmy.  The applicant’s obligations to his immediate and extended family, all illegally residing in Pakistan, evoke an immediate compassionate response and her Honour took into account these factors in assessing the applicant’s personal circumstances, his prospects for rehabilitation, and the extent to which imprisonment would weigh more heavily upon the applicant than others in different circumstances. 
21	Counsel for the applicant correctly noted that the question of whether the applicant had demonstrated to the sentencing judge exceptional circumstances was one of fact and degree.  In many cases, where the sole or significant family breadwinner is imprisoned, hardship will very likely follow.  There is nothing unusual about this consequence, which confronts sentencing judicial officers routinely.  It must be borne steadily in mind, however, that the primary function of a sentencing court is to impose a sentence that properly reflects the gravity of the crime:
[I]t is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.
22	We are not satisfied that the applicant has demonstrated error under this ground.  In more positive language, we are of the view that it was open to her Honour to conclude that the hardship in this case was at a level below that exceptional case where the plea for mercy is ‘irresistible’.
23	Leave to appeal under this ground is refused. 
	Ground 3 — The jury accepted the complainant’s account and rejected the applicant’s account
24	The applicant contends under this ground that her Honour erred in making a factual finding adverse to the applicant.  In short compass, in passing sentence, the judge stated the following: 
You gave evidence in your trial, and testified that you lay down on your left hand side to hold the rail of the stairway and ask the complainant if she was ok.  You testified that you did not touch her at all, perhaps accidentally touched her clothing, but you did not put your hand under her dress.  By its verdict, the jury rejected your account, and separately accepted the account of the complainant.
25	The applicant complains that while the jury verdict did not confirm acceptance of the applicant’s account, the jury only partially accepted the complainant’s account.  Specifically, the jury rejected the complainant’s assertion that her vagina was digitally penetrated.  The applicant argues that this account may have factored into the asserted disproportionate sentence. 
26	There is nothing in this ground.  In our view, a fair reading of the emphasised sentencing remarks in the paragraph 24 demonstrates that the judge was only comparing the contrasting accounts of whether the applicant put his hand under the complainant’s dress.  So confined, her Honour’s statement that the jury rejected the applicant’s account and accepted the complainant’s account is unremarkable.  It reflects the jury verdict, and the entire context of the plea hearing.  In particular:
•	the judge said that the assault related to touching the outside of the vagina;
•	the judge’s factual findings related to touching the vagina, as opposed to digitally penetrating it; and
•	in response to an inquiry about whether the touching would be found to be under or over the complainant’s underwear, the judge stated that she would make no such finding. 
27	Leave to appeal under this ground is also refused. 
	Ground 1 — Manifest excess
28	This Court frequently observes that this type of ground is difficult to establish.  It is not this Court’s function to substitute its own opinion as to an appropriate sentence.  It will only intervene if the impugned sentence is considered to be ‘wholly outside the range of appropriate sentences available’, unreasonable or plainly unjust.  Appeals against sentence are constrained by the principles of appellate review of discretionary decisions stated in House v The King.  
29	The maximum sentence for the offence of sexual assault is 10 years’ imprisonment.  After conducting a criminal trial, as was his right, the applicant was convicted and sentenced to a term of imprisonment representing seven and half per cent of the maximum sentence available. 
30	We have recited the many factors which were part of the judge’s difficult balancing exercise in this matter.  There were powerful factors that pulled in differing directions.  Giving full weight to the applicant’s difficult upbringing, lack of prior convictions, prospects for rehabilitation and the difficulties he will face in custody, in our view, the sentence of nine months’ imprisonment, when considered alone, is lenient.  Whilst the indecent contact was brief, we agree with the judge’s observations that it was ‘intimate, embarrassing and traumatic’.  This was an opportunistic sexual violation with significant consequences.  It demands punishment, and a term of imprisonment of seven and a half per cent of the maximum available sentence is, in our view, at or towards the bottom of the sentencing range.  The applicant’s solid background and sound prospects for rehabilitation made him a worthy candidate for a composite sentence. 
31	We consider that the combined effect of the nine-month term of imprisonment, together with the CCO imposed, placed the overall sentence imposed well within the range of appropriate sentences available. 
32	Leave to appeal on this ground is refused. 
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