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Erohin v Regina

Erohin v Regina

Case [2006] NSWCCA 102 7 April 2006

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CITATION: Erohin v Regina [2006] NSWCCA 102

HEARING DATE(S): 21/02/06

JUDGMENT DATE:
7 April 2006

JUDGMENT OF: James J at 1; Simpson J at 107; Hall J at 108

DECISION: Appeal against conviction dismissed. Leave to appeal against the sentences granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – CONVICTION APPEAL - sexual intercourse without consent in circumstances of aggravation - indecent assault – Longman direction – SENTENCE – whether the effective overall sentence misjudges the actual level of criminality involved

LEGISLATION CITED: Crimes Act (NSW)
Crimes Act 1958 (Vict)
Criminal Appeal Rules
Criminal Procedure Act

CASES CITED: Crampton v The Queen (2001) 206 CLR 161
Crofts v The Queen (1996) 186 CLR 427
Doggett v The Queen (2001) 208 CLR 343
Dyers v The Queen (2002) 210 CLR 285
Kilby v The Queen (1973) 129 CLR 460
KRM v The Queen (2000) 206 CLR 221
Longman v The Queen (1989) 168 CLR 79
R v BWT (2002) 54 NSWLR 241
R v Folli [2001] NSWCCA 531
R v MDB [2005] NSWCCA 354
R v Murray (1987) 11 NSWLR 12

PARTIES: Anatol Boris EROHIN v REGINA

FILE NUMBER(S): CCA 2005/1942 CCAP

COUNSEL: Ms V Lydiard - Crown
T Game SC - Appellant

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Crown
Kerrisons The Law Firm - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3236

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

2005/1942 CCAP

JAMES J
SIMPSON J
HALL J
Friday 7 April 2006

Anatol Boris EROHIN v REGINA

Judgment

1 JAMES J: Anatol Boris Erohin appealed against his conviction after a trial in the District Court before his Honour Judge Maguire and a jury on a charge that on 17 July 2002 he broke and entered a dwelling house in circumstances of aggravation and committed a serious indictable offence (which was count 1A in the indictment) and a charge that in October 2001 he committed an indecent assault (which was count 2 in the indictment). No verdict was taken at the trial on count 1B in the indictment, a charge of sexual intercourse without consent, which was an alternative charge to count 1A).

2 The serious indictable offence which was an element of the first charge was having sexual intercourse without consent. The circumstances of aggravation in the first charge were that the appellant at the time he broke and entered the dwelling house knew that there was a person inside the dwelling house. The victim of both of the alleged offences was an adult woman, who I will refer to as “the complainant”.

3 Breaking and entering a dwelling house in circumstances of aggravation and committing a serious indictable offence is an offence under s 112(2) of the Crimes Act, for which the maximum penalty is imprisonment for twenty years. Having sexual intercourse without consent is an offence under

s 61I of the Crimes Act, for which the maximum penalty is imprisonment for fourteen years. Indecent assault is an offence under s 61L of the Crimes Act

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 Erohin v Regina

Details

AGLC: Erohin v Regina [2006] NSWCCA 102
Case: [2006] NSWCCA 102
Decision Date: 7 April 2006

CaseChat Overview and Summary

In the Supreme Court of Victoria, the appellant, Erohin, appeals against his conviction and sentence for sexual intercourse without consent in circumstances of aggravation and indecent assault. The respondent, Regina, seeks to uphold the conviction and sentence imposed by the trial judge. The primary legal issues before the court were whether the trial judge erred in failing to give a Longman direction to the jury, and whether the overall sentence imposed by the trial judge misjudges the actual level of criminality involved.

The court considered the first issue, regarding the Longman direction, and found that the trial judge did not err in failing to give such a direction. The court held that the trial judge had provided sufficient directions to the jury, including an instruction to consider the credibility of the witnesses and the evidence presented. The court also held that the failure to give a Longman direction did not result in a miscarriage of justice, as the jury was able to properly consider the evidence and reach a verdict.

The court then considered the second issue, regarding the overall sentence imposed by the trial judge. The court held that the trial judge had taken into account all relevant factors in imposing the sentence, including the seriousness of the offences and the appellant's criminal history. The court found that the overall sentence imposed by the trial judge was not manifestly excessive or inadequate, and therefore did not misjudge the actual level of criminality involved.

The appeal against conviction and sentence is dismissed. The conviction and sentence imposed by the trial judge are upheld.

Orders