Davies v The Queen - [2014] VSCA 69

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0041

LUKE DAVIES	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 April 2014
DATE OF JUDGMENT	10 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 69
JUDGMENT APPEALED FROM	R v [Davies] (Unreported, County Court of Victoria, Judge Mullaly, 28 February 2013)

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SENTENCING – Application for leave to appeal sentence – Application granted and treated as heard instanter – Multiple charges for sexual offences – Applicant sentenced to a total effective sentence of 16 years’ imprisonment with a non-parole period of 14 years – Trial judge erred in failing to make orders consistent with his intention that the sentences imposed should be served concurrently with the sentences already being served – Appeal allowed – Appellant re-sentenced to a total effective sentence of 14 years and 43 days with a non-parole period of 12 years and 43 days – Sentence to be served concurrently with the term of imprisonment the applicant is already serving – Period in custody prior to sentence taken into account under Renzella [1997] 2 VR 88 – No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Tait Lawyers
For the Respondent	Ms S A Flynn	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The applicant, Luke Davies, was indicted on 14 charges of sexual offences against his stepdaughter (Indictment B12601697) which occurred in Mildura in 2006 and 2007. He was also indicted on 6 charges of sexual offences against his sisters and his niece, (Indictment A 10631522) which occurred between 1967 and 2003 in Swan Hill. He pleaded guilty to all these charges and was sentenced in the County Court by Judge Mullaly on 28 February 2013 as follows:

SWAN HILL INDICTMENT
Charge on Indictment A10631522.1C (victim)	Offence	Maximum	Sentence	Cumulation
1 (SJ)	Incest  [Crimes Act 1958, s 52(3)]	7 years	20 months	9 months
2 (WK)	Unlawful Carnal Knowledge [Crimes Act 1958, s 48]	10 years	2 years	12 months
3 (GV)	Incest  [Crimes Act 1958, s 52(3)]	7 years	2 years	BASE
4 (GV)	Incest  [Crimes Act 1958, s 52(3)]	7 years	20 months	6 months
5 (GV)	Gross indecency  [Crimes Act 1958, s 69]	2 years	3 months	Nil
6 (GV)	Incest  [Crimes Act 1958, s 52(3)]	5 years	12 months	3 months
Total sentence on this indictment:	4 years 6 months imprisonment (3 years cumulated on sentences on indictment B12601697 referred to below)
Non-Parole Period:	N/A
Pre-sentence Detention Declared:	N/A
s 6AAA Statement:	TES of 6 years 6 months on this indictment
Other orders:	Nil
MILDURA INDICTMENT
Charge on Indictment B12601697 (victim R on all charges)	Offence	Maximum	Sentence	Cumulation
1 (Rep. charge)	Produce Child Pornography  [Crimes Act 1958, s 68]	10 years	18 months	6 months
2	Administer drug for Purposes of Sexual Penetration  [Crimes Act 1958, s 53(1)]	10…

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 Davies v The Queen

Details

AGLC: Davies v The Queen [2014] VSCA 69
Case: [2014] VSCA 69
Decision Date: 10 April 2014

CaseChat Overview and Summary

Davies appealed against the sentence imposed by the County Court, arguing that the trial judge had not properly ordered that the sentences be served concurrently with those already being served. The appeal centred on whether the trial judge's intention regarding the concurrent nature of the sentences was correctly implemented in the sentencing orders. The court had to determine whether the trial judge’s intention to make the sentences run concurrently was accurately reflected in the final orders and whether the appeal should be allowed as a result of this error.

The court held that the trial judge's intention was not properly reflected in the sentencing orders, as the sentences were not ordered to be served concurrently with those already being served. The court accepted that this was an error of law that required correction. The appeal was allowed because the trial judge's intention was not implemented in the orders, and the sentences were not made to run concurrently as intended. The court re-sentenced the appellant to a total effective sentence of 14 years and 43 days with a non-parole period of 12 years and 43 days, to be served concurrently with the term of imprisonment already being served. The court also considered the period in custody prior to sentence, taking it into account under the principles set out in Renzella.

The appeal was allowed, and the appellant was re-sentenced to a total effective sentence of 14 years and 43 days with a non-parole period of 12 years and 43 days, to be served concurrently with the term of imprisonment already being served. The court found that there was no point of principle involved in this decision.

Orders