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…
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- AGLC
- Bolton v The Queen [2019] VSCA 21
- Case
- [2019] VSCA 21
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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