Felix Horton (a pseudonym)[1] v The Queen - [2015] VSCA 319

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0036

FELIX HORTON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims 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:	REDLICH and KAYE JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 October 2015
DATE OF JUDGMENT:	26 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 319	1^st Revision: 4 December 2015 – [1], n 2
JUDGMENT APPEALED FROM:	DPP v [Horton] (Unreported, County Court of Victoria, Judge Montgomery, 27 January 2015)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of a child under 16 – Indecent act with a child under 16 – Whether directions adequate – No evidence of recent complaint – Credibility of complainant –Re trial – Counsel sought directions given in previous trial – Whether application under s 61(1)(b)(ii) of Crimes Act 1958 – Failure to request direction under s 11 of Jury Directions Act 2013 – Kilby v The Queen (1973) 129 CLR 460; R v Taylor [No 2] (2008) 18 VR 613 considered; Worsnop v The Queen (2010) 28 VR 187 followed – Whether complainant’s evidence inconsistent with witness’s evidence – Whether prosecutor’s questions improper – Accused’s habit of nudity – Whether conviction unsafe and unsatisfactory – Application refused – Jury Directions Act 2013 ss 11, 15 – Crimes Act 1958 s 61(1)(b)(ii).

CRIMINAL LAW – Appeal – Sentence – Whether sentence and non-parole period manifestly excessive – Sentenced to six years, non-parole period four years – Violation of relationship between siblings – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Dickinson QC	Slades and Parsons
For the Respondent	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA:

Following a trial the applicant was convicted on two charges of sexual penetration of a child under 16 and two charges of committing an indecent act with a child under 16 and was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)][2]	10 years [Crimes Act 1958 s 45(2)(c)]	4 years’ imprisonment	Base
3	Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)]	10 years [Crimes Act 1958 s 45(2)(c)]	4 years’ imprisonment	1 year
4	Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]	10 years [Crimes Act 1958 s 47(1)]	2 years’ imprisonment	9 months
5	Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]	10 years [Crimes Act 1958 s 47(1)]	2 years’ imprisonment	3 months
Total Effective Sentence:		6 years
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		18 days
6AAA Statement:		N/A
Other relevant orders:		§ Sentenced as a serious sex offender for charges 4 and 5 pursuant to…

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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Details

Case: [2015] VSCA 319
Decision Date: 26 November 2015

CaseChat Overview and Summary

Felix Horton (a pseudonym) appealed his conviction and sentence to the Court of Appeal. He was found guilty of sexually penetrating a child under 16 and committing an indecent act with a child under 16. The appeal questioned the adequacy of the trial judge's directions to the jury, the credibility of the complainant's evidence, and the propriety of the prosecutor's questions during the trial. Additionally, the appeal contested the length of the sentence and the non-parole period.

The appeal raised several legal issues, including whether the trial judge's directions to the jury were adequate and whether there was a failure to request a direction under the Jury Directions Act 2013. The appeal also questioned whether the complainant's evidence was inconsistent with that of a witness and whether the prosecutor's questions were improper. Finally, the appeal argued that the sentence and non-parole period were manifestly excessive.

The Court of Appeal found that the trial judge's directions to the jury were adequate and that there was no failure to request a direction under the Jury Directions Act 2013. The Court also found that the complainant's evidence was not inconsistent with that of the witness and that the prosecutor's questions were proper. The Court further found that the sentence and non-parole period were not manifestly excessive.

The Court of Appeal dismissed the appeal, upholding the conviction and sentence. The Court found that the conviction was safe and satisfactory and that the sentence and non-parole period were not manifestly excessive. The Court also found that the trial judge's directions to the jury were adequate and that there was no failure to request a direction under the Jury Directions Act 2013. Finally, the Court found that the complainant's evidence was consistent with that of the witness and that the prosecutor's questions were proper.

Orders