DPP v Ayol (Unreported, County Court of Victoria, Judge Hannan, 18 September 2013)
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CRIMINAL LAW – Election to renew application for leave to appeal against conviction pursuant to Criminal Procedure Act 2009 (Vic) s 315(2) – Applicant convicted of rape and common assault and acquitted of two further counts of rape – Whether inconsistency between convictions and acquittals – Significant differences between evidence led in support of charges upon which applicant convicted and charges upon which he was acquitted – Where leave to appeal earlier refused, Court hesitant to grant leave to appeal unless by reference to judge’s reasoning on initial application it is shown that there would be error if the conclusion was left to stand – Leave refused.
CRIMINAL LAW – Appeal against sentence – Appellant sentenced to four years and 11 months’ imprisonment with non-parole period of three years – Whether sentence manifestly excessive – Manifest excess requires something to have gone obviously, plainly or badly wrong in exercising sentencing discretion – Violent rape – Serious example of offence of this type – Nothing to suggest sentence outside range – Appeal dismissed – Clarkson v The Queen (2011) 32 VR 361 followed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant/Appellant
Mr D A J Gray
David Barrese & Associates
For the Crown
Mr D Trapnell QC
Mr C Hyland, Solicitor for Public Prosecutions
MAXWELL P:
I will invite Weinberg JA to deliver the first judgment.
WEINBERG JA:
In September 2013, the applicant (or appellant in relation to the sentence) stood trial in the County Court at Melbourne on three charges of rape (charges 1, 3 and 4) and one charge of common assault (charge 2). He was convicted of charges 1 and 2 but acquitted of charges 3 and 4.
He was subsequently sentenced to a term of four years and nine months’ imprisonment on charge 1 and seven months’ imprisonment on charge 2. It was ordered that two months of the latter sentence be served cumulatively upon the sentence imposed on charge 1, making a total effective sentence of four years and 11 months with a non–parole period of three years.
The applicant sought leave to appeal against conviction and sentence.
On 7 March 2014, Priest JA refused leave to appeal against conviction but granted leave to appeal against sentence.
The applicant has elected to renew his application for leave to appeal against conviction and has pursued his appeal against sentence.
The facts are set out comprehensively in paragraphs 6–13 of Priest JA’s reasons for judgment on the leave application:
Two days before the commission of the offences, the complainant, FM, and the applicant met each other through a mutual acquaintance, Kuel Kuel. The offences occurred…
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.
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AGLC
Ayol v The Queen [2014] VSCA 151
Case
[2014] VSCA 151
Decision Date
CaseChat Overview and Summary
In the case of Ayol v The Queen, the applicant sought to renew an application for leave to appeal against his conviction for rape and common assault, while also being acquitted on two other counts of rape. The matter was heard by the court which had to determine whether there was an inconsistency between the applicant's convictions and acquittals, as well as whether the sentence imposed was manifestly excessive. The applicant's earlier application for leave to appeal had been denied, and the court was reluctant to grant a renewed application unless it was shown that there would be an error if the initial conclusion was left to stand.
The court examined whether there were significant differences in the evidence presented for the charges on which the applicant was convicted and those on which he was acquitted. It held that a renewed application for leave to appeal should only be entertained if the judge's reasoning on the initial application indicated a potential error. After reviewing the evidence and the judge's reasoning, the court found no such error and refused the application to renew leave to appeal. Regarding the sentence, the court noted that the offence was a serious example of violent rape and that there was nothing to suggest the sentence was outside the appropriate range. The appeal against the sentence was dismissed, following the principles set out in Clarkson v The Queen.
The court's decision was that the application to renew leave to appeal against conviction was refused, and the appeal against sentence was dismissed. The applicant's convictions and sentence would stand, as the court found no manifest error in the initial determination or sentencing process.