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Flora v The Queen

Flora v The Queen

Case [2013] VSCA 192 31 July 2013

Appeal

Sentencing

Causation

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0013

TIBERIJI FLORA
	Appellant
V
THE QUEEN
	Respondent

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JUDGES	REDLICH, WEINBERG AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 March 2013
DATE OF JUDGMENT	31 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 192
JUDGMENT APPEALED FROM	DPP V Flora (Unreported, County Court of Victoria, Judge Mullaly, 14 December 2011)

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CRIMINAL LAW – Appeal against conviction – One count of rape and one count of intentionally causing injury – Evidence of distress – Whether ‘intractably neutral’ as to whether rape or lesser crime – Post-offence circumstantial evidence – Inference from totality of the evidence – Appeal dismissed – R v Ciantar (2006) 16 VR 26; R v Hillier (2007) 228 CLR 618; Brooks v The Queen [2012] VSCA 197 applied.

CRIMINAL LAW – Appeal against sentence – Lengthy and largely unexplained delay – Whether sentencing judge failed adequately to take significance of delay into account –Appellant resentenced – R v Merrett (2007) 14 VR 392 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Galbally Rolfe
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
COGHLAN JA:

On 5 December 2011, following what many would now regard as an unusually short trial, the appellant was found guilty, in the County Court at Melbourne, of having, on 1 July 2008, intentionally injured (count 2), and digitally raped (count 3), CR, a woman with whom he had had a lengthy but turbulent relationship. He was acquitted of a further charge which alleged that a week or so earlier he had raped CR (count 1). Count 1 involved an allegation of penile rape.

The appellant was sentenced as follows:

Count Offence Maximum Sentence Cumulation

2 Intentionally cause injury 10 years [Crimes Act 1958 (Vic) s 18] 8 months 2 months

3 Rape 25 years [Crimes Act 1958 (Vic) s 38(1)] 6 years Base

Total Effective Sentence: 6 years 2 months

Non-Parole Period: 4 years

Pre-sentence Detention Declared: 10 days

The background facts may be briefly stated. The appellant and CR first met in 2003. CR moved into the appellant’s house in the early stages of the relationship. After two or three months, however, she moved out. She subsequently lived in separate premises, though the relationship was maintained through to May 2008. CR described the relationship as having been marked by emotional and verbal abuse. From May 2008 to the date of these offences, CR and the appellant continued to attend social gatherings together, and CR would sometimes go to the appellant’s house.

It should be noted that CR alleged that in about April or May 2003, while they were living together, the appellant, after reading an innocuous message from someone with whom she was corresponding as part of her job, pulled her down onto the floor, took his pants off, called her a slut and demanded oral sex. She threatened to call the police,…

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 Flora v The Queen

Details

AGLC: Flora v The Queen [2013] VSCA 192
Case: [2013] VSCA 192
Decision Date: 31 July 2013

CaseChat Overview and Summary

The case of Flora v The Queen involves an appeal against conviction and sentence. The appellant was convicted of one count of rape and one count of intentionally causing injury. The appeal against conviction focused on the sufficiency of the evidence, particularly in relation to the appellant's distress following the incident and whether this was 'intractably neutral' as to whether the crime was rape or a lesser offence. The appeal against sentence concerned the lengthy and largely unexplained delay in bringing the matter to trial and whether the sentencing judge had adequately taken this delay into account.

The court had to determine whether the evidence was sufficient to prove the charges beyond reasonable doubt, particularly considering the post-offence circumstantial evidence and the inferences drawn from the totality of the evidence. The court also had to assess whether the sentencing judge had properly considered the delay in bringing the matter to trial when determining the sentence. The court applied established legal principles, including those from R v Ciantar, R v Hillier, Brooks v The Queen, R v Merrett, to resolve these issues.

In dismissing the appeal against conviction, the court found that the evidence was sufficient to prove the charges beyond reasonable doubt. The court held that the evidence of distress was not 'intractably neutral' and that an inference of rape could be drawn from the totality of the evidence. Regarding the appeal against sentence, the court found that the sentencing judge had not adequately considered the delay in bringing the matter to trial. The appellant was resentenced, applying the principles from R v Merrett.

The final orders of the court were to dismiss the appeal against conviction and to resentence the appellant on the charges of rape and intentionally causing injury. The court's decision underscores the importance of the totality of the evidence in criminal cases and the need for sentencing judges to consider all relevant factors, including any delays in bringing a matter to trial.

Orders