SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0146 |
| GC |
| v |
| 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.…
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- AGLC
- GC v The Queen [2013] VSCA 139
- Case
- [2013] VSCA 139
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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