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Avery v The Queen

Avery v The Queen

Case [2014] VSCA 86 9 May 2014

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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…

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 Avery v The Queen

Details

AGLC: Avery v The Queen [2014] VSCA 86
Case: [2014] VSCA 86
Decision Date: 9 May 2014

CaseChat Overview and Summary

The applicant in this matter appealed against their conviction and sentence following their conviction on three charges of sexual penetration of a child under 16, with five other charges of sexual penetration against the same complainant being dismissed by the jury. The jury was unable to reach a verdict on the remaining nine charges. The primary issues before the court were whether the convictions were unreasonable or could not be supported by the evidence, and whether they were inconsistent with the jury's verdicts on the remaining charges. Additionally, the court had to consider whether the verdicts were unsafe and unsatisfactory, and whether the sentence was manifestly excessive.

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