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Bolton v The Queen

Bolton v The Queen

Case [2019] VSCA 21 14 February 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0077

PATRICK BOLTON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH JA, CHAMPION and TAYLOR AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2019
DATE OF JUDGMENT:	14 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 21
JUDGMENT APPEALED FROM:	[2018] VCC 385

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CRIMINAL LAW – Conviction – Application for leave to appeal – Judge’s charge – Whether judge’s charge unbalanced – Application to discharge jury before charge completed – Application to discharge jury ruled premature by judge – Application to discharge jury not renewed at completion of charge – Consideration of whole charge – Charge not unbalanced – Exceptions to charge not taken – Error, irregularity or miscarriage of justice contended for by applicant not reasonably arguable – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Appeal – Rape (2 charges), intentionally cause injury, threat to kill and common assault – Sentenced to total effective sentence of 21 years with non-parole period of 17 years – Serious sexual offender – Protection of community – Prior convictions for rape – Revenge rape – Offending while serving suspended sentence – Offending in breach of intervention order – Not guilty pleas – No remorse – Sentence not manifestly excessive – No error in sentence – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr M R Page	Greg Thomas Barrister & Solicitor
For the Respondent	Mr C B Boyce SC	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
CHAMPION AJA
TAYLOR AJA:

On 1 November 2017, following a nine-day trial in the County Court, the applicant was found guilty of one charge of common assault (charge 1), one charge of making a threat to kill (charge 2), two charges of rape (charges 3 and 6) and one charge of intentionally causing injury (charge 4).

On 22 March 2018, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Common assault (Common Law) 5 years 1 year Nil

2 Make threat to kill (Crimes Act 1958 s 20) 10 years 2 years 6 months

3 Rape (Crimes Act 1958 s 38(1)) 25 years 10 years 7 years

4 Intentionally cause injury (Crimes Act 1958 s 18(1)) 10 years 4 years 18 months

6 Rape (Crimes Act 1958 s 38(1)) 25 years 12 years Base

Total Effective Sentence: 21 years

Non-Parole Period: 17 years

Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of charges 3 and 6. The applicant was sentenced as a serious sexual offender because he had previously been convicted of three counts of rape for which he had been sentenced to a term of imprisonment.[1]
[1]See R v Bolton [1998] 1 VR 692.

The applicant now seeks leave to appeal against his conviction and sentence. The sole proposed ground of appeal against conviction is:

The trial miscarried…

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 Bolton v The Queen

Details

AGLC: Bolton v The Queen [2019] VSCA 21
Case: [2019] VSCA 21
Decision Date: 14 February 2019

CaseChat Overview and Summary

The applicant, a man convicted of various serious criminal offences including rape and assault, sought leave to appeal against his conviction and sentence. The case was heard in the High Court of Australia. The applicant argued that the trial judge’s charge to the jury was unbalanced and prejudicial, leading to an unfair trial. Additionally, he contested the severity of his sentence, arguing it was manifestly excessive.

The primary legal issues before the court were whether the judge's charge to the jury contained any imbalance that could have prejudiced the applicant's trial and whether the sentence imposed was manifestly excessive. The court examined the charge in its entirety, considering the language used and its potential impact on the jury's impartiality. The court also assessed the proportionality and appropriateness of the sentence given the nature and circumstances of the offences, as well as the applicant's criminal history.

The High Court found that the judge's charge did not contain any material imbalance or unfairness that would have prejudiced the applicant's trial. The court concluded that the exceptions to the charge were not reasonably arguable and did not establish any error, irregularity, or miscarriage of justice. Regarding the sentence, the court determined that it was neither manifestly excessive nor disproportionate to the gravity of the offences committed. The applicant's extensive criminal history, including prior convictions for serious sexual offences, supported the severity of the sentence imposed.

The High Court dismissed the application for leave to appeal, holding that the arguments presented were not reasonably arguable. The original conviction and sentence were affirmed.

Orders