[1]To ensure that there is no possibility of identification of the victim(s) of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES:
WEINBERG, WHELAN and BEACH JJA
WHERE HELD:
WARRNAMBOOL
DATE OF HEARING:
23 July 2014
DATE OF JUDGMENT:
15 August 2014
MEDIUM NEUTRAL CITATION:
[2014] VSCA 175
JUDGMENT APPEALED FROM:
Director of Public Prosecutions v [Blair (a pseudonym)] (Unreported, County Court of Victoria, Judge Hampel, 18 September 2013)
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CRIMINAL LAW — Conviction — Sexual offences — Applicant charged with seven counts of incest — Applicant convicted after trial by jury of two counts of incest and acquitted of other incest counts — Whether convictions capable of being reconciled with verdicts of acquittal — Whether convictions unsafe and unsatisfactory — Verdicts reconcilable based upon combination of evidence as to timing and admissions — Verdicts not unsafe and unsatisfactory— Application for leave to appeal against conviction refused.
CRIMINAL LAW — Sentence — Sexual offences — Incest — Complainant applicant’s step-daughter — Applicant pleaded not guilty — Convictions on two counts related to one incident when complainant 15 years old — Sentencing judge imposed 10 years total effective sentence with 8 years non-parole — Crown conceded sentence manifestly excessive — Applicant re-sentenced to 7 years total effective sentence with 5 years non-parole.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr O P Holdenson QC
Bowman & Knox
For the Crown
Ms F Dalziel
Mr C Hyland, Solicitor for Public Prosecutions
WEINBERG JA:
I have had the advantage of reading in draft the reasons prepared by Whelan JA. I agree with those reasons and with the orders proposed.
WHELAN JA:
The applicant was charged with seven counts of incest and two counts of committing an indecent act with a child under 16 years. He pleaded not guilty and the matters went to trial. The trial judge directed the entry of verdicts of not guilty on the two indecent act charges. The seven incest charges went to verdict. The jury returned majority not guilty verdicts on five of the incest charges and unanimous guilty verdicts on two of them. The judge sentenced the applicant to eight years’ imprisonment on each of the two incest convictions with an order that two years on one be served cumulatively with the sentence on the other, making a total effective sentence of 10 years. She fixed a non-parole period of eight years.
The applicant seeks leave to appeal his convictions on the ground that the guilty verdicts were unreasonable and cannot be supported having regard to the evidence and to the not guilty verdicts on the other five incest charges.
The applicant also seeks leave to appeal his sentence. It is of course only necessary to consider that application in the event that his application for leave to appeal his convictions, or…
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
Blair (a pseudonym) v The Queen [2014] VSCA 175
Case
[2014] VSCA 175
Decision Date
CaseChat Overview and Summary
The case before the court involved Blair, whose identity is protected by the use of a pseudonym, who was convicted of multiple counts of incest by a jury. The applicant was found guilty of two counts of incest involving his step-daughter, while the jury acquitted him of the remaining charges. The applicant sought to appeal against his convictions on the grounds that they were unsafe and unsatisfactory and could not be reconciled with the acquittals. Additionally, the applicant challenged the sentence imposed by the sentencing judge, claiming it was manifestly excessive.
The primary legal issues before the court were whether the applicant's convictions on two counts of incest could be reconciled with the jury's verdicts of acquittal on the other counts, and whether the convictions were unsafe and unsatisfactory. The court also needed to determine if the sentence imposed was manifestly excessive and whether the re-sentencing was appropriate. The court examined the evidence presented during the trial, particularly the timing of the incidents and the applicant's admissions, to assess the consistency of the verdicts. Furthermore, the court reviewed the sentence in light of the Crown's concession that it was manifestly excessive and considered the principles of sentencing in cases of incest.
The court found that the verdicts were reconcilable based on the evidence regarding the timing of the incidents and the applicant's admissions. The court held that the convictions were not unsafe and unsatisfactory, as they were supported by the evidence and did not conflict with the acquittals. The court also determined that the original sentence was manifestly excessive, leading to the re-sentencing of the applicant to a total effective sentence of seven years with a non-parole period of five years. The application for leave to appeal against the convictions was ultimately refused by the court.
The final orders of the court were that the application for leave to appeal against the convictions was dismissed, and the sentence was varied to reflect a total effective sentence of seven years with a non-parole period of five years. The court's decision upheld the convictions and adjusted the sentence in accordance with the principles of criminal justice.