JUDGES:	REDLICH, BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 February 2017
DATE OF JUDGMENT:	24 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 28
JUDGMENT APPEALED FROM:	DPP v Thu (Unreported, County Court of Victoria, Judge Gamble, 30 October 2015 (Tendency Ruling) and 11 March 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Tendency evidence – Rape – Whether conduct towards victim, including text messaging, probative of a tendency to have a relevant sexual interest in the complainant and a willingness to act on that interest in respect of complainant – Whether conduct had significant probative value – Guilty passion evidence – Application for leave to appeal granted – Appeal dismissed – Evidence Act 2008, ss 97 and 101.

CRIMINAL LAW – Appeal – Sentence – Rape (1 charge), indecent act with child under 16 (3 charges) – Four complainants – Whether sentence of 9 years and 6 months with non-parole period of 7 years manifestly excessive – Not reasonably arguable that individual sentences, orders for cumulation, total effective sentence or non-parole period were manifestly excessive – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Bayles	Cook & Associates
For the Respondent	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
BEACH JA
McLEISH JA:

On 23 November 2015, following a 10-day trial in the County Court, the applicant was convicted of one charge of rape. At the same time, the applicant was acquitted of three charges of committing an indecent act with, or in the presence of, a child. The complainant in respect of all four charges, AA, was 10 years of age at the time of the alleged rape.

On 15 December 2015, the applicant pleaded guilty to three charges of committing an indecent act with, or in the presence of, a child. These offences were committed with respect to three other complainants, BB, CC and DD. The complainants BB and CC were aged eight years at the time of the offending against them, and DD was aged nine years at the time of the offending against her.

Following a plea hearing on 25 January 2016, the applicant was sentenced on 11 March 2016 as follows:

Charge on Indictment F10581626.1AA	Offence	Maximum	Sentence	Cumulation
1	Rape [Crimes Act 1958 s 38(1)]	25 years [Crimes Act 1958 s 38(2)]	8 years and 4 months	Base sentence
Charge on Indictment F10581626.2B
1	Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]	10 years [Crimes Act 1958 s 47(1)]	14 months	4 months
2	Indecent act with a child under 16	10 years	16 months	6 months
3	Indecent act with a child under 16	10 years	15 months	4 months
Total Effective Sentence:		9 years and 6 months’ imprisonment
Non-Parole Period:		7 years
Pre-sentence Detention…

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 Aung Thu v The Queen

Details

AGLC: Aung Thu v The Queen [2017] VSCA 28
Case: [2017] VSCA 28
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the case of Aung Thu v The Queen, the appellant appealed against his conviction and sentence for multiple sexual offences involving four complainants. The primary issue before the court was whether the conduct exhibited towards the victim, including text messaging, was probative of a tendency to have a relevant sexual interest in the complainant and a willingness to act on that interest in respect of the complainant. The court had to determine if the conduct had significant probative value under the provisions of the Evidence Act 2008. Additionally, the appellant contested the sentence imposed, arguing it was manifestly excessive.

The court examined the evidence presented, including text messages exchanged between the appellant and the victim, and assessed their probative value in establishing a tendency to engage in the charged conduct. It was found that the text messages, along with other conduct, had significant probative value in demonstrating the appellant's tendency towards the charged offences. The court also considered the nature and gravity of the offences and the need to protect the community, concluding that the appeal against conviction was not reasonably arguable. The appeal against sentence was also dismissed as the court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for deterrence and protection of the community.

The court's reasoning was that the text messages and other conduct provided substantial evidence of the appellant's tendency to engage in the charged conduct, and therefore had significant probative value. The sentence imposed was deemed appropriate given the circumstances and the need to balance the interests of justice with the need for community protection. The appeal against conviction was dismissed, and the application for leave to appeal against the sentence was refused. The final orders affirmed the conviction and sentence imposed by the lower court.

Orders