[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	NIALL, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 June 2020
DATE OF JUDGMENT:	25 June 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 173
JUDGMENT APPEALED FROM:	DPP v Flynn (a pseudonym) (Unreported, County Court of Victoria, Judge Stuart, 20 November 2018)

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CRIMINAL LAW – Appeal – Conviction – Applicant tried on indictment containing five charges of having, on three separate dates, raped his wife – Acquittal on charges 1–3, but conviction on charges 4 and 5 – Applicant’s eldest son intervened in offending giving rise to charges 4 and 5 – Eldest son gave evidence against applicant by way of VARE and special hearing – Whether verdicts unsafe or unsatisfactory – Whether two jurors, separately, ought to have been discharged, for different reasons – Whether VARE tapes of applicant’s children ought to have been exhibits – Whether judge correctly directed jury that evidence of what eldest son told his brother should be disregarded – Whether impermissible cross-examination of applicant – Whether substantial miscarriage of justice – Verdicts open to jury – No substantial miscarriage of justice – Leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Sentence – Two charges of digital rape – Sentence of 6 years’ imprisonment on each charge – 2 years’ cumulation – Total effective sentence of 8 years’ imprisonment with non-parole period of 5 years – Whether sentence manifestly excessive –Rapes occurred within moments of each other – Single transaction rule – Order for cumulation manifestly excessive – Leave to appeal against sentence granted – Appeal allowed – Applicant resentenced to total effective term of 6 years and 6 months with non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr A L Hands	Emma Turnbull Lawyers
For the Respondent:	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
T FORREST JA
WEINBERG JA:

In September 2018, the applicant stood trial in the County Court at Ballarat. He was tried on an indictment containing five charges accusing him of having raped his wife, ‘Jane Flynn’, on three separate dates in February 2017 (those being, 2, 3, and 7 February).

On 19 September 2018, the jury acquitted the applicant on charges 1–3, but convicted him on charges 4 and 5. On 20 November 2018, he was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

4 Rape [s 38(1)— Crimes Act1958] 25 years 6 years Base

5 Rape [s 38(1) — Crimes Act1958] 25 years 6 years 2 years

Total effective sentence: 8 years’ imprisonment

Non-parole period: 5 years

Pre-sentence detention declared: 267 days

Ancillary orders Related summary offence (contravening a condition of bail) remitted to the Magistrates’…

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 Flynn (a pseudonym) v The Queen

Details

AGLC: Flynn (a pseudonym) v The Queen [2020] VSCA 173
Case: [2020] VSCA 173
Decision Date: 25 June 2020

CaseChat Overview and Summary

Flynn (a pseudonym) appeals against his conviction and sentence arising from a trial in the Supreme Court of Victoria. The applicant was convicted of two charges of digital rape against his wife, following an acquittal on three earlier charges. His eldest son had intervened in the incidents that led to the final two charges, providing evidence against the applicant through a Vulnerable Accused Rape Evidence (VARE) process and a special hearing. The applicant argues that the verdicts were unsafe and unsatisfactory, and that there were procedural errors in the trial, including the handling of juror discharge and the admission of VARE tapes. Additionally, the applicant contests the correctness of the sentence, arguing it was manifestly excessive.

The court examined whether the verdicts were unsafe or unsatisfactory, considering the applicant's claims of juror bias and the admissibility of certain evidence. It also assessed whether the trial judge correctly instructed the jury on the handling of evidence from the applicant's eldest son. The court found that the verdicts were open to the jury and that there was no substantial miscarriage of justice. The court rejected the applicant's claims regarding juror discharge and evidence admissibility, concluding that the trial was conducted fairly. The court denied leave to appeal against the conviction but granted leave to appeal against the sentence, finding the cumulation order was manifestly excessive.

In relation to the sentence, the court determined that the effective sentence of eight years was manifestly excessive, particularly given the close temporal proximity of the offences. The court applied the single transaction rule, recognising the offences as part of a single continuous act. The court resentenced the applicant to a total effective term of six years and six months, with a non-parole period of four years. This decision balanced the gravity of the offences with the need for a proportionate sentence, taking into account the principle of proportionality and the single transaction rule.

The court's final orders were to grant leave to appeal against the sentence, allowing the appeal, and resentencing the applicant to a total effective term of six years and six months with a non-parole period of four years. The court's reasoning focused on the proportionality of the sentence and the application of the single transaction rule to the closely related offences.

Orders