GC v The Queen - [2013] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0146

THE QUEEN

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JUDGES:	BUCHANAN, HARPER and TATE JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23 April 2013
DATE OF JUDGMENT/ORDER:	14 June 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 139
JUDGMENT APPEALED FROM:	Unreported, County Court of Victoria, Judge Cannon, Date of Sentence 14 June 2011

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CRIMINAL LAW – Rape – Awareness by accused that the complainant was or might be submitting to penetration because of force or the fear of force or because she was unlawfully detained entailed awareness that the complainant was or might not be consenting, R v Getachew (2012) 286 ALR 196, distinguished.

CRIMINAL LAW – Sentence – Rape, false imprisonment and indecent assault - A total effective sentence of 11 years’ imprisonment with a minimum term of 7 years and 4 months’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Rainer Martini & Associates
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
HARPER JA
TATE JA:

After a trial in the County Court the appellant was found guilty on three charges of rape, one charge of false imprisonment and one charge of indecent assault. The appellant was acquitted on one charge of indecent assault.

A plea was conducted and the appellant was sentenced to be imprisoned for a term of 8 years on each of the charges of rape, for a term of 4 years on the charge of false imprisonment and for a term of 3 years and 6 months on the charge of indecent assault. With a measure of cumulation, a total effective sentence of 11 years’ imprisonment was produced. A non-parole period of 7 years’ and 4 months was fixed.

The appellant and the complainant had been in a sexual relationship for some six months prior to the commission of the offences.

On the night when the offences took place, the complainant went to the house of the appellant expecting to have consensual sexual intercourse. The appellant and the complainant drank alcohol and the appellant smoked marijuana.

The appellant took the complainant to his bedroom and forcibly tied her arms and legs to the bed. The appellant thus restrained the complainant for many hours during the evening and into the next morning.

During the course of the evening, the appellant raped the complainant vaginally, anally and orally. The Crown case was based upon one example of each of the types of rape, but evidence was led of uncharged acts being further instances of each type of rape.

In his record of interview, the appellant admitted that he had tied the complainant up and had sexually penetrated her a number of times. However, he insisted that the tying up and the sexual activity had been consensual. He denied assaulting the complainant and also said that on previous occasions he had tied the complainant up consensually. He did not give evidence at his trial.…

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 GC v The Queen

Details

AGLC: GC v The Queen [2013] VSCA 139
Case: [2013] VSCA 139
Decision Date: 14 June 2013

CaseChat Overview and Summary

In the High Court of Australia, GC appealed against his conviction and sentence for rape, false imprisonment, and indecent assault. The accused was convicted following a trial in the Supreme Court of Victoria. The complainant, a woman with a disability, alleged that the accused sexually assaulted her at his residence. The court was required to determine whether the accused was aware that the complainant was or might be submitting to penetration because of force or the fear of force or because she was unlawfully detained, and whether this awareness entailed awareness that the complainant was or might not be consenting. Additionally, the court considered whether the sentence imposed was manifestly excessive.

The court held that awareness by the accused that the complainant was or might be submitting to penetration because of force or the fear of force or because she was unlawfully detained did not necessarily entail awareness that the complainant was or might not be consenting. This case distinguished the earlier decision in R v Getachew (2012) 286 ALR 196, which had held that such awareness did entail such knowledge. The court also concluded that the sentence of 11 years’ imprisonment with a minimum term of 7 years and 4 months was not manifestly excessive, taking into account the gravity of the offences and the need for general deterrence.

The appeal was dismissed, and the convictions and sentence were upheld. The court found that the trial judge had correctly applied the law and properly considered the relevant factors in determining the sentence. The accused's contention that the sentence was manifestly excessive was rejected. The court emphasised the importance of considering the totality of the offending and the need for appropriate punishment and deterrence.

Orders