H R A v The Queen - [2012] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0291

H R A	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and OSBORN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2012
DATE OF JUDGMENT:	2 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 88
JUDGMENT APPEALED FROM:	DPP v [HRA] (Unreported, County Court of Victoria, Judge Hampel, 14 October 2011)

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CRIMINAL LAW – Appeal – Sentence – Incest – Applicant’s Justice Health file subpoenaed by defence to support submission on plea concerning applicant’s physical and psychological health – Subpoenaed documents used by prosecution to cast doubt on applicant’s remorse – Whether procedurally unfair – No objection by defence – No application for adjournment – Implicit concession that material properly before the Court – No unfairness to applicant – No error – Even if error established, no different sentence should be imposed – Appeal dismissed – Criminal Procedure Act 2009 (Vic) s 281.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M P R Turner	Doogue & O’Brien
For the Crown	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

This is an application for leave to appeal against sentence. Because of the matters raised under Ground 2, and in the interests of the expeditious disposal of the matter, the application for leave was referred to a Bench of two so that the matter could be dealt with as the hearing of the appeal if leave were granted.

For reasons which follow, I would grant leave but dismiss the appeal.

Factual background

The applicant pleaded guilty to a number of serious sexual offences and was sentenced as set out in the following table, conveniently contained in the applicant’s written case:

Charge Offence Maximum Sentence Cumulation

1 Indecent act with a child under 16 10 y 6 m 6 m

2 Incest by step-parent 25 y 3 y 18 m

3 Incest by step-parent 25 y 4 y 2 y

4 Incest by step-parent 25 y 6 y Base

5 Attempted incest by step-parent 20 y 18 m 6 m

6 Incest by step-parent 25 y 18 m 6 m

7 Incest by step-parent 25 y 2 y 1 y

Total Effective Sentence: 12 y

Non-parole period: 9 y

Pre-sentence detention declared: 241 days

6AAA Statement: The learned trial Judge stated that the sentence he would have imposed if the applicant had been convicted of these offences after trial would have been 16 years with a non parole period of 13 years.

Other relevant orders: A compensation order was made against the Applicant.

The Crown’s written case helpfully summarises the relevant facts as follows:

The complainant is the stepdaughter of the accused.
The complainant was six years of age when the applicant placed his hands down her pants and rubbed her vagina. This was approximately 2 years after the applicant had been living with the mother of the complainant. ( Count 1)
When the complainant was eleven the applicant began to sexually penetrate the complainant…

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 H R A v The Queen

Details

AGLC: H R A v The Queen [2012] VSCA 88
Case: [2012] VSCA 88
Decision Date: 2 May 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, the applicant appealed against his conviction and sentence for incest. The applicant's Justice Health file, which contained sensitive information about his physical and psychological health, was subpoenaed by the defence to support their plea concerning the applicant's health. The prosecution used these documents to cast doubt on the applicant's remorse, leading to a claim of procedural unfairness. The applicant argued that the use of his health file without his consent was unfair and prejudicial, potentially affecting the sentence imposed.

The legal issues before the court were whether the subpoena and use of the applicant's health file by the prosecution constituted procedural unfairness and, if so, whether this warranted a different sentence. The court noted that the defence did not object to the subpoena and did not apply for an adjournment, implicitly conceding that the material was properly before the court. The court further held that there was no unfairness to the applicant, as the defence had access to the same information and the prosecution's use of it did not prejudice the applicant's case. Even if an error had been established, the court found that it would not result in a different sentence being imposed.

The appeal was dismissed, and the original sentence was upheld. The court found no procedural unfairness and no grounds for altering the sentence. The applicant's appeal was thus unsuccessful, and the original conviction and sentence remained in place.

Orders