JUDGES	REDLICH, WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	4 March 2013
DATE OF JUDGMENT	6 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 138
JUDGMENT APPEALED FROM	DPP v Anderson (Unreported, County Court of Victoria, Judge Sexton, 14 December 2011)

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CRIMINAL LAW — Sentence — Indecent assault on unconscious complainant — Video recording of assault — Rape of unconscious complainant — Second rape of complainant when conscious — Ruling in trial that video recording constituted tendency evidence — Whether ruling relevant to sentence — Whether recording aggravating feature of rapes — Error in reducing discount on plea of guilty because of strength of Crown case or because it did not reduce length of trial — Phillips v The Queen [2012] VSCA 140 applied — Judge taking into account current sentencing practice ‘to a certain extent’ — Whether open to judge to give only qualified weight to current sentencing practice — Relevance of observations by Court of Appeal that current sentencing practice should be reviewed — Appeal allowed — Appellant re-sentenced — Ashdown v The Queen [2011] VSCA 40 applied, Hasan v The Queen (2010) 31 VR 28 considered.

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Appearances:	Counsel	Solicitors
For the Appellant	Ms S Leighfield	Galbally & O’Bryan
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

WEINBERG JA
HARPER JA:

Following a trial the appellant was sentenced in the County Court on 14 December 2011 on two charges of rape, one charge of indecent assault and one charge of possessing child pornography. Maxwell P granted the appellant leave to appeal against the sentences imposed on grounds which included that the sentencing judge erred in treating the trial judge’s ruling as to tendency evidence as a relevant consideration in sentencing, and that she failed to have proper or sufficient regard to current sentencing practices for rape. In addition during the hearing of the appeal, counsel for the appellant was granted leave to add a further ground that the sentencing judge inappropriately refused to discount the plea of guilty on the charge of indecent assault. Each of these grounds, which allege discrete error, has been made out. For the reasons that follow the appellant must be re-sentenced.

Background

On 15 June 2011, the appellant pleaded guilty to one charge of indecent assault. On 23 June 2011, he was convicted by a jury of two charges of rape. The appellant also then pleaded guilty to the charge of possession of child pornography. The appellant’s plea was to be heard on 24 July, but for reasons that are not pertinent, the trial judge was unable to hear the plea or sentence the appellant. The plea was eventually heard by a judge who was not the trial judge on 2 December 2011.

He was sentenced as follows:

Indictment A10332384.3 - First Indictment

Charge on Indictment Offence Maximum Sentence Cumulation

1.

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 Anderson v The Queen

Details

AGLC: Anderson v The Queen [2013] VSCA 138
Case: [2013] VSCA 138
Decision Date: 6 June 2013

CaseChat Overview and Summary

In the matter of Anderson v The Queen, the appellant stood convicted of multiple charges, including indecent assault on an unconscious complainant, and two counts of rape, one on an unconscious complainant and another on the same complainant when she was conscious. The case was heard in the Court of Appeal, which had to determine whether the video recording of the assaults constituted a tendency evidence relevant to sentencing and whether the judge erred in considering this evidence when reducing the discount on the plea of guilty. Additionally, the court examined whether the judge appropriately took into account current sentencing practices.

The legal issues before the court included whether the video recording of the assault constituted an aggravating feature of the rapes and if so, whether this recording was relevant to the sentence. Another critical issue was whether the judge erred in reducing the discount on the plea of guilty because of the strength of the Crown case or because it did not reduce the length of the trial. The court also needed to determine if the observations made by the Court of Appeal regarding the need to review current sentencing practices impacted the judge's sentencing discretion.

The Court of Appeal found that the judge did not properly consider the relevance of the video recording when reducing the discount for the plea of guilty. The court held that the video recording was not a relevant aggravating feature of the rapes and that the judge should have given more weight to current sentencing practices. The court found that the judge’s consideration of the video recording was an error, and this error was not trivial but affected the overall sentence. Consequently, the appeal was allowed, and the appellant was re-sentenced. In reaching this decision, the court applied the principles from Phillips v The Queen and Ashdown v The Queen, and considered the observations from Hasan v The Queen.

The final orders of the court were to allow the appeal and re-sentence the appellant, taking into account the appropriate application of current sentencing practices and without considering the video recording as an aggravating feature. The court also emphasized the importance of adhering to established legal principles when assessing the discount for a plea of guilty.

Orders