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Gray (a pseudonym) v The Queen

Gray (a pseudonym) v The Queen

Case [2018] VSCA 163 26 June 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0156

TOM GRAY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	PRIEST, BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2018
DATE OF JUDGMENT:	26 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 163
JUDGMENT APPEALED FROM:	DPP v [Gray] (Unreported, County Court of Victoria, Judge Hannan, 18 May 2016)

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CRIMINAL LAW – Appeal – Sentence – Application for extension of time to appeal against sentence – Applicant convicted of abduction, false imprisonment, multiple charges of rape and associated offences – Delay of 13 months not satisfactorily explained – Appeal having no prospects of success – Application for extension of time refused – Criminal Procedure Act 2009 s 313 – Madafferi v The Queen [2017] VSCA 302 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George
For the Respondent	Ms K Judd QC, DPP with Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
NIALL JA:

Introduction

The applicant, who holds a doctoral degree in quantum physics, is a man of superior intellectual capacities. His full scale IQ places him within the ‘superior range’ (95^th percentile). Notwithstanding his intellect, however, in mid-2015 he committed a truly monstrous crime.

Thus, on a Wednesday in mid-2015, shortly after 2:00 pm, the applicant snatched his victim — a young woman of 18 years who had gone out for a recreational run — from a road situated in a rural city. He knocked her to the ground, trussed her up with cord, blindfolded her, threw her into the back of his car and drove her away. Throughout that day and the next, the applicant subjected the victim to a multitude of sexually motivated acts — permeated by gratuitous sadism, cruelty and violence — of almost unimaginable depravity. Indeed, the applicant’s horrific offending is, in the collective experience of the members of the Court, of an order of deviancy and degeneracy not matched in any previous case that we have encountered. The offending is so disturbing that we will not summarise it. We think it enough to observe that it is described in detail in the sentencing judge’s very thorough reasons for sentence.[2]
[2]DPP v [Gray] (Unreported, County Court of Victoria, Judge Hannan, 18 May 2016), [9]–[72] (‘Reasons’).

On 9 May 2016, the applicant pleaded guilty in the County Court to abduction; false imprisonment; rape (ten charges); rape by compelling sexual penetration; sexual assault (four charges); sexual assault by compelling sexual touching; common assault (nine charges); and a summary charge of threatening to distribute an intimate image.

Following a plea, on 18 May 2016 a judge sentenced the applicant to a total effective sentence of 19 years’ imprisonment, with a non-parole…

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 Gray (a pseudonym) v The Queen

Details

AGLC: Gray (a pseudonym) v The Queen [2018] VSCA 163
Case: [2018] VSCA 163
Decision Date: 26 June 2018

CaseChat Overview and Summary

The applicant, using the pseudonym Gray, sought an extension of time to appeal against his sentence in the Supreme Court of Victoria. Gray was convicted of abduction, false imprisonment, and multiple charges of rape and associated offences. The appeal against the sentence was lodged 13 months after the sentence was handed down. The primary issue before the court was whether the delay in lodging the appeal was satisfactorily explained and whether the appeal had prospects of success.

The court considered the statutory provisions under the Criminal Procedure Act 2009, specifically section 313, which provides for an extension of time to appeal. The court also referred to the decision in Madafferi v The Queen, where the Victorian Court of Appeal emphasised the importance of timely appeals and the need for a satisfactory explanation for any delay. The applicant did not provide a satisfactory explanation for the 13-month delay. Furthermore, the court found that the appeal did not have prospects of success based on the evidence and the arguments presented.

In light of the unsatisfactory explanation for the delay and the lack of prospects of success, the court refused the application for an extension of time to appeal. The court held that the delay was significant and not adequately justified, and that the appeal would not succeed on its merits. The decision was made in accordance with the statutory framework and relevant precedents.

Orders