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Forbes (a pseudonym) v The Queen

Forbes (a pseudonym) v The Queen

Case [2018] VSCA 341 18 December 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0027

JAMES FORBES (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	FERGUSON CJ, WHELAN JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2018
DATE OF JUDGMENT:	18 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 341
JUDGMENT APPEALED FROM:	DPP v Forbes (a pseudonym) [2017] VCC 1705 (Judge S Davis)

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CRIMINAL LAW – Sentence – Multiple assaults and multiple rapes by former domestic partner – Not guilty plea – Total effective sentence of 10 years 10 months’ imprisonment with non-parole period of 7 years 3 months – Whether particular sentence, total effective sentence and non-parole period manifestly excessive – Relevance of particular features of offending – Relevance of context of domestic violence – Proposed ground not arguable – Leave to appeal refused – Jurj v The Queen [2016] VSCA 57 considered – Pasinis v The Queen [2014] VSCA 97 and Filiz v The Queen [2014] VSCA 212 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Pica Criminal Lawyers
For the Respondent	Ms S M K Borg	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ
WHELAN JA
MACAULAY AJA:

On 12 May 2017 the applicant was found guilty by a jury of two charges of intentionally causing injury, one charge of common law assault, and three charges of rape.

Following plea hearings in July and October 2017, he was sentenced by a judge in the County Court on 17 November 2017 as follows:

Charge on Indictment F14236609 Offence Maximum Sentence Cumulation

1. Intentionally Cause Injury contrary to s 18 of the Crimes Act 1958 (Vic). Level 5 imprisonment (10 years) 12 months’ imprisonment 3 months

6.
Assault contrary to common law Level 6 imprisonment (5 years) 6 months’ imprisonment 1 month

7.
Rape contrary to s 38(1) of the Crimes Act 1958 (Vic). Level 2 imprisonment (25 years) 7 years’ imprisonment 18 months

9.
Intentionally Cause Injury contrary to s 18 of the Crimes Act 1958 (Vic). Level 5 imprisonment (10 years) 2 years’ imprisonment 6 months

11.
Rape contrary to s 38(1) of the Crimes Act 1958 (Vic). Level 2 imprisonment (25 years) 7 years’ imprisonment 18 months

12.
Rape contrary to s 38(1) of the Crimes Act 1958 (Vic). Level 2 imprisonment (25 years) 7 years’ imprisonment Base sentence

Total Effective Sentence: 10 years and 10 months’ imprisonment

Non-Parole Period: 7 years and 3 months

Pre-sentence Detention Declared: 189 days

6AAA Statement: Not applicable

Other orders:

Sentenced as a serious sexual offender pursuant to s 6F Sentencing Act 1991 (Vic) in respect of charge 12; and

Forensic sample order.

The applicant now seeks leave to appeal on the following ground:

The sentence imposed was manifestly excessive in that:
(i) The individual sentence imposed on Charge 11 was…

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 Forbes (a pseudonym) v The Queen

Details

AGLC: James Forbes (a pseudonym)[1] v The Queen [2018] VSCA 341
Case: [2018] VSCA 341
Decision Date: 18 December 2018

CaseChat Overview and Summary

The appellant, using the pseudonym Forbes, was convicted by a jury of multiple counts of assault and rape against his former domestic partner. He appealed against the total effective sentence of 10 years and 10 months’ imprisonment, with a non-parole period of 7 years and 3 months, arguing that it was manifestly excessive. The appeal was brought before the Court of Appeal, which considered the arguments and decided on the legality and proportionality of the sentence given.

The primary legal issues for the court to determine were whether the particular sentence, the total effective sentence, and the non-parole period were manifestly excessive. The court had to weigh the severity and nature of the offences, which included multiple instances of assault and rape, against the appellant’s plea of not guilty and the context of domestic violence. The appellant argued that certain features of his offending and the domestic violence context should have resulted in a lesser sentence. The Crown, however, contended that the sentence was appropriate and reflected the gravity of the crimes committed.

The Court of Appeal examined the case law and determined that the sentence was not manifestly excessive. The court considered the principles outlined in Jurj v The Queen, Pasinis v The Queen, and Filiz v The Queen, which provide guidance on the sentencing of serious offences. The court found that the sentence imposed was within the range of what was appropriate for the crimes committed, taking into account all relevant factors. Consequently, the court concluded that the proposed ground of appeal was not arguable and refused leave to appeal.

The final orders of the Court of Appeal were that the appeal against sentence be dismissed, and the original sentence imposed by the trial judge was upheld as appropriate and proportionate to the offences committed. The court emphasised the importance of considering the nature of the offences and the context of domestic violence, while also acknowledging the appellant's plea of not guilty, in reaching its decision.

Orders