SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0131
| CHRISTOPHER AVERY (A PSEUDONYM)[1] |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, the judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
S APCR 2013 0137
| CHRISTOPHER AVERY (A PSEUDONYM) |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WARREN CJ, REDLICH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 February 2014 |
| DATE OF JUDGMENT | 9 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 86 |
| JUDGMENT APPEALED FROM | DPP v AB (Unreported, County Court of Victoria, Judge Mason, 26 June 2013) |
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CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant convicted of three charges of sexual penetration of child under 16 and acquitted of five charges of sexual penetration against same complainant – Jury could not agree in relation to nine remaining charges – Whether convictions unreasonable, or could not be supported, having regard to the evidence – Whether convictions inconsistent with verdicts on remaining counts – Whether verdicts unsafe and unsatisfactory – Verdicts could both logically and rationally be explained according to the evidence – Verdicts not an ‘affront to logic and commonsense’ – Jury gave separate consideration to charges and convicted on those where there was supporting evidence for the complainant – Leave refused – MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606 followed.
CRIMINAL LAW – Sentence – Application for leave to appeal – Whether individual sentence of four years’ imprisonment on each charge, total effective sentence of five years’ imprisonment and non-parole period of three years manifestly excessive – Applicant grossly abused position of trust as complainant’s family friend and teacher – Individual sentences plainly within range – Orders for cumulation entirely appropriate – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M G O’Connell SC with Ms F H Todd | Robert Stary Lawyers |
| For the Crown | Mr G J C Silbert QC | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ
REDLICH JA:
The applicant seeks leave to appeal against his conviction on three charges of sexual penetration of a child under the age of 16. Under cover of Grounds 1 and 2 of his notice of appeal, he challenges the verdicts of guilty on Charges 10, 11 and 12 as unreasonable or unsupportable having regard to the evidence (Ground 1) and unsafe and unsatisfactory and giving rise to a substantial miscarriage of justice (Ground 2). During the oral hearing of the appeal, he also sought leave to file an additional ground, namely that the verdicts on Charges 10, 11 and 12 were inconsistent with the jury’s failure to reach a verdict on Charge 9.
We have had the advantage of reading in draft the reasons of Weinberg JA and agree that the application for leave to appeal must be refused.
It became apparent during the course of oral…
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- AGLC
- Avery v The Queen [2014] VSCA 86
- Case
- [2014] VSCA 86
- Decision Date
CaseChat Overview and Summary
The court found that the convictions could be logically and rationally explained according to the evidence, and were not an affront to logic and commonsense. The jury had given separate consideration to each charge and had convicted on those where there was supporting evidence for the complainant. The court followed the precedents set in MacKenzie v The Queen and MFA v The Queen, and held that the verdicts were not unreasonable or unsafe and unsatisfactory. Furthermore, the court held that the individual sentences of four years’ imprisonment on each charge, with a total effective sentence of five years’ imprisonment and a non-parole period of three years, were entirely appropriate given the applicant's position of trust as a family friend and teacher of the complainant.
In conclusion, the court dismissed the applicant's application for leave to appeal against their conviction and sentence. The court found that the convictions were supported by the evidence and were not inconsistent with the jury's verdicts on the remaining charges. The court also held that the sentence was not manifestly excessive given the circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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