New South Wales Court of Criminal Appeal CITATION : R v Gazi Comert [2004] NSWCCA 125 HEARING DATE(S) : 05/04/2004 JUDGMENT DATE : 6 May 2004 JUDGMENT OF : Sully J at 1; Hidden J at 28; Hislop J at 28 DECISION : Appeal against conviction dismissed. By majority, application for leave to appeal against sentence granted and appeal allowed - sentence passed in the District Court quashed - in lieu, sentence of six years imprisonment from 7 February 2003, non-parole period four and a half years. CATCHWORDS : CRIMINAL LAW: - Appeal - appeal against conviction and application for leave to appeal against sentence - aggravated sexual assault - no question of principle in conviction appeal - whether sentence manifestly excessive - whether sentencing judge took into account irrelevant matter PARTIES : Regina (respondent) Gazi Comert (applicant) FILE NUMBER(S) : CCA 60340/03 ; 60423/03 P Bodor QC (applicant) COUNSEL : E Wilkins (Crown) Appellant in Person for conviction appeal. SOLICITORS : Legal Aid Commission (applicant) S Kavanagh (Crown Solicitors) LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0245 FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60340/03 60423/03 SULLY J HIDDEN J HISLOP J Thursday, 6 May, 2004 REGINA v Gazi COMERT Judgment 1 SULLY J: In October 2002 the appellant, Mr. Comert, stood trial in the District Court at Sydney before her Honour Judge Hock and a jury. The charge brought against the appellant was one of aggravated sexual assault against his wife. Such an offence is a contravention of section 61J(1) of the Crimes Act 1900 (NSW); and it attracts upon conviction a maximum penalty of imprisonment for 20 years. On 1 November 2002 the jury returned a verdict of guilty. On 21 February 2003 the appellant was sentenced to imprisonment for 8 years, with a non-parole period of 6 years. The appellant challenges his conviction and applies for leave to appeal against his sentence. 2 The hearing of the appeal was somewhat complicated by reason of the fact that the appellant was granted legal aid for the purpose only of pursuing his application for leave to appeal against sentence. An application by him for legal aid in connection with his appeal against conviction was refused; with the consequence that the appellant represented himself in his conviction appeal, but was represented by Senior Counsel in connection with his application for leave to appeal against sentence. 3 The remarks on sentence of the learned trial Judge contained the following helpful summary of the material facts: "The complainant, a young Italian woman, visited Australia from Italy during 1998 and 1999. She travelled to various parts of the country, ultimately arriving in Sydney where she met the offender. She and her girl-friend stayed for a few weeks at the offender's unit in Manly. The complainant subsequently commenced a relationship with him and on 19 June 1999 they married. The complainant gave evidence that the marriage was a violent one and she tried to leave the offender on at least two occasions. On one of those, in January 2000, she went to the police in Manly who took her to a refuge. However, she returned to live with the offender. At about 5.30 p.m. on 16 March 2000, the complainant was watching television at home. The offender approached her and asked 'Why are you being cold to me?'. The complainant said she did not feel like having sex with him and that she had her period. She said in evidence that the first of the statements was true and the second was untrue. The offender then grabbed her by the arm and by the hair and pushed her to the floor. The complainant tried to struggle but the offender was too big and too strong. The offender agreed in evidence that he was a strong man. When the complainant's hand went near the offender's mouth, when she tried to fend him off, he bit her fingers. The complainant said to the offender "Don't do this, this is wrong, I don't want to, please stop'. However, she was dragged to the bedroom by her arm and her hair. When she screamed the offender covered her mouth with his hand. She was pushed to the mattress on the floor. The offender said 'Don't you want to have a baby with me, I know you are ovulating'. The offender held her down and had penile vaginal sexual intercourse with her until he ejaculated. He then got up, dressed, and went to work. The complainant went to the bathroom and showered. She was crying and dry-retching. She rang her friend, Miss Adayna Drysdale, and asked her if she could stay with her for a couple of days. Miss Drysdale agreed and came to collect the complainant. When she arrived at the unit, the complainant told her that the offender had raped her. The next day the complainant went to the police who took her to Royal North Shore Hospital. She was examined there by Doctor June Edwards who noted that she had numerous injuries, including a tender curved abrasion over the right side of the lower jaw; abrasions to the knuckles of three fingers to the left hand, consistent with being bitten; a striated injury, four centimetres wide, on the inside of the right forearm; blue bruises on the inside of the right thigh, front of the right thigh and centre of her back. Doctor Edwards' evidence was that with the exception of some yellow bruises that she noted which were older, all the injuries were inflicted at the same time and were consistent with the history given to her by the complainant. When the police examined the unit, they found clumps of the complainant's hair on the carpet. The offender gave evidence and denied sexual intercourse took place. He did not dispute the complainant was injured, but said that her injuries were sustained when she attacked him and it was necessary for him to protect himself. Clearly, the jury did not believe the account that he gave." 4 Four grounds of appeal against conviction were originally notified. The Notice of Grounds of Appeal sets out the grounds in the appellant's hand-writing and in the following terms: "1. DNA check and clarification of her pregnancy which occurred 2 March 2000 (Mardi-Grass). She said 'she's got pregnant when she was raped'. So it was not 16th March. Whose baby was it? 2. Alleged victim lied in the court of law which is perjury. Her psychological assessment is required for a fair trial. 3. Turkish people set me up as I'm a Kurdish political refuge. 4. I was misrepresented by legal team and all the evidence was not presented in the trial." 5 As to Ground 1, a convenient starting point is the evidence actually given by the complainant in her evidence-in-chief at trial. She gave the following evidence: "Q. Were you pregnant during the period that you were married to ………. (the appellant) ………..? A. Yeah. Q. What happened to that pregnancy? A. I was pregnant twice. Q. What happened to the two pregnancies? A. The first one I had an abortion. The second one I think I got pregnant with him the day that he actually raped me or whatever you want to call it. And I lost it I think because of the stress and I don't know but I was in Italy." (T 19, 24.10.02) 6 The complainant gave lengthy evidence-in-chief and was very extensively and closely cross-examined by counsel experienced in the conduct of criminal trials. At no time during her cross-examination was anything put to her that was apt to suggest the allegation that is conveyed by Ground 1. 7 In those circumstances I do not think that Ground 1 has been made out. 8 As to Ground 2, it suffices, in my opinion, to point out that the complainant was cross-examined very strongly as to her credit. Various statements made by her at various times to the police were put before her and she was cross-examined about them to the end of suggesting that some of the things said by her in those statements were not consistent with the picture that her evidence-in-chief had painted for the jury. The jury had every proper opportunity to see and hear the complainant in the witness box. The verdict of the jury necessarily entails that the jury accepted the version of relevant events given by the complainant. No suggestion of any kind whatsoever was made prior to the commencement of the trial or throughout the duration of the trial to the effect that a fair trial required a psychiatric assessment of the complainant. 9 In those circumstances Ground 2, also, has not been made out. 10 As to Ground 3, it is clear from both the written and the oral submissions of the appellant that the appellant has an unshakable conviction that he has been the victim of a political fabrication engineered by Turkish Nationals who are antagonistic towards him because he is, ethnically, Kurdish. 11 The appellant voiced this conviction during the course of his evidence at trial. In that connection the appellant said in one of his answers in cross-examination: "I don't want to go into the details because it's isn't right if I say I'm being set up by Mafia or by some other people or this and that because I don't have the facts." (T 261(40):30.10.02) 12 In my opinion this ground, also, has not been established. 13 As to Ground 4, it can be acknowledged at once that this is not an easy ground to be argued by an appellant in person. I think, however, that even allowing for the obvious difficulties that a person in the appellant's situation could be expected to face in arguing Ground 4, it is not unreasonable to look for some distinct statement by the appellant: first, of the precise nature of the additional material which the appellant says ought to have been led at the trial but was not led; secondly, of the fact that the material was notified to the appellant's legal representatives at trial; or if it was not so notified, the reason why it was not notified; and thirdly, why, insofar as the appellant is in a position to shed any light on the fact, was the material, if in the hands of his then legal representatives, not used at his trial. 14 I can find in the appellant's submissions, both oral and written, nothing that really deals with any of those three matters. It seems to me, therefore, that there is simply no proper basis upon which the Court could uphold Ground 4. 15 The written submissions of the appellant assert what appears to be an additional ground of appeal, namely that the appellant was "very unfit" for his trial. The particular submission asserts that there was "something wrong" with the appellant throughout the trial. The appellant says: "my mind was totally blank and I was in a delusion, hallucinating. There were a lot of misunderstandings as well. My English was very limited as I've never been to school in Australia". 16 There is, so far as I can see, no evidence, and in particular no qualified professional opinion evidence, apart from the appellant's bald assertion of those matters. No complaint of the kind appears to have been made at the trial. 17 This additional ground, also, I would not uphold. 18 I am, therefore, of the opinion that the appeal against conviction should be dismissed. 19 The application for leave to appeal against sentence rests upon two propositions: first, that the learned primary Judge erred in that her Honour failed to find special circumstances; and, secondly, that her Honour imposed, in any event, a manifestly excessive sentence. 20 The remarks on sentence canvass in appropriate detail both the objective and the subjective facts relevant to the appellant's case. It is clear that the learned primary Judge took a very severe view of the objective criminality of the offence committed by the appellant. In my opinion her Honour was entitled to take that stance. 21 At the hearing of the application there was some discussion concerning the following sentence which appears at page 4 of the remarks on sentence: "An additional aggravating feature of the offence is that it was committed in the complainant's own home where she was entitled to feel and to be safe." 22 The relevant discussion was centred on a proposition that these observations by her Honour suggested that her Honour had erroneously taken into account as an aggravating objective factor a matter that did not properly have that character. 23 In my opinion the short answer to that argument is to be found by setting the sentence fairly into the whole of the context of which it is a part. The immediately preceding paragraph of the remarks on sentence notes, correctly as I respectfully think, the propositions: that non-consensual sexual intercourse is an extreme form of violence; that the appellant's particular offence was committed in circumstances of aggravation in that simultaneously with committing the sexual assault the appellant had maliciously inflicted actual bodily harm upon the complainant; that the complainant had not suffered permanent physical injuries; that there was at least a risk that she had suffered some psychological damage albeit her present condition did not suggest that any such damage had manifested itself in any particular, or particularly serious, way; and that it was no mitigation of the objective gravity of the offence that, at times prior to the committing of the offence, the appellant and the complainant had "engaged in a consensual, sexual relationship". 24 The sentence now questioned, when looked at fairly in the whole of that context, does not seem to me to carry the implication that her Honour was, in effect, dealing with the appellant on a basis that went beyond the basis in law of the charge for which the appellant then stood for sentence. The sentence seems to me to be no more than an extension of the antecedent proposition that the affront of the offence to the victim was the greater by reason of the fact that she had been sexually assaulted with violence in the then matrimonial home. 25 I see no basis upon which it would be proper for this Court to interfere with the head sentence of imprisonment for 8 years. 26 It is clear that her Honour adverted to the matter of special circumstances as bearing upon the setting of an appropriate non-parole period. My own impression from a reading of the remarks on sentence is that the factor which disposed her Honour not to find special circumstances was her Honour's finding, which I consider to have been amply open to her on the available evidence, that the appellant's prospects for rehabilitation were "guarded". I see no error of law in her Honour's having declined to vary the statutory non-parole proportion of the head sentence. 27 In my opinion the Court should order: [1] that the appeal against conviction be dismissed; [2] that leave be granted to appeal against sentence; [3] that the appeal against sentence be dismissed. 28 HIDDEN & HISLOP JJ: We agree with Sully J that the appeal against conviction should be dismissed. However, we take a different view of the appeal against sentence. 29 Reading the relevant part of the sentencing Judge's remarks as a whole, there can be no doubt that her Honour did characterise as an "additional aggravating feature" the fact that the offence was committed in the complainant's home. We are satisfied that, in so doing, her Honour fell into error. No doubt, that would have been an aggravating feature if the offender had been an intruder. However, we are unable to see how a sexual assault on a woman by her husband is rendered more serious because it was perpetrated in the matrimonial home. This, of course, is not to deny the gravity of offences of violence, whether or not of a sexual nature, committed in a domestic setting. 30 We were not referred to any comparable cases. The Crown prosecutor in this Court supplied some Judicial Commission sentencing statistics, but the sample is so small that they are of no assistance. Nevertheless, while acknowledging the seriousness of the offence and the appellant's lack of remorse, we are also persuaded that the sentence passed by her Honour is manifestly excessive. There was a history of violence in the marriage, but the appellant's subjective case was otherwise favourable. In our view, the appropriate sentence is imprisonment for 6 years. There are no special circumstances warranting a departure from the usual proportion between sentence and non-parole period. Indeed, while an argument that her Honour should have found special circumstances was foreshadowed in written submissions, it was not pressed in oral argument. 31 We would grant leave to appeal against sentence and allow the appeal. We would quash the sentence passed by her Honour and, in lieu, would sentence the appellant to imprisonment for 6 years, to date from 7 February 2003, with a non-parole period of 4½ years. The appellant would be eligible for release on parole on 6 August 2007. ********** Last Modified: 05/11/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.