[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES:
OSBORN, PRIEST and McLEISH JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
1 September 2015
DATE OF JUDGMENT:
17 November 2015
MEDIUM NEUTRAL CITATION:
[2015] VSCA 304
JUDGMENT APPEALED FROM:
R v [Hermanus] (Unreported, County Court of Victoria, Judge Hampel, 14 November 2014 (Conviction); 21 November 2014 (Sentence))
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CRIMINAL LAW – Appeal – Conviction – Sexual offending against daughter in 1970s – fresh evidence – Whether complainant gave an inconsistent account of offending post-verdict – Cross-examination of complainant – Whether defence counsel prevented from relying on inconsistencies in complainant’s accounts – Previous representations – Whether ‘fresh in the memory’ – Behaviour of victims of sexual offending – Police evidence concerning – Whether admissible – Delay in complaint – Jury direction – Trial judge’s comments concerning victims of sexual offending – Whether judge’s charge unbalanced – Leave to appeal against conviction granted – Appeal dismissed – AC v The Queen (2014) 42 VR 278, R v MM [2007] EWCA Crim 1558 considered.
CRIMINAL LAW – Appeal – Sentence – Total effective sentence of 9 years’ imprisonment with non-parole period of 6 years – Applicant aged 77 years – Poor health – Delay – Prospects of rehabilitation – Whether sentence manifestly excessive – Appeal allowed – Total effective sentence of 7 years’ imprisonment with non-parole period of 4 years and 6 months substituted.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr T R Marsh with Ms R S Sleeth
Victoria Legal Aid
For the Crown
Ms F L Dalziel
Ms V Anscombe, Acting Solicitor for Public Prosecutions
OSBORN JA:
Introduction
On 14 November 2014 the applicant was convicted by a jury in the County Court of two charges of buggery (charges 3 and 5) and one charge of indecent assault (charge 4).
On 21 November 2014 the applicant was sentenced by the trial judge to six years’ imprisonment on each of the buggery charges and two years’ imprisonment on the charge of indecent assault. Three years of the sentence in respect of charge 5 was ordered to be served cumulatively upon the sentence for charge 3, resulting in a total effective sentence of nine years’ imprisonment. The sentencing judge fixed a non-parole period of six years’ imprisonment.
The applicant now seeks leave to appeal both against conviction and against sentence.
I have had the advantage of reading the reasons of Priest JA in draft.
I agree with his Honour for the reasons which he gives that proposed grounds 1, 2, 3 and 4 of appeal against conviction must fail.
Proposed ground 5 relates to a direction given and comments made by the trial judge with respect to delay in complaint by the victim of alleged sexual offences.
Despite some misgivings as…
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.
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AGLC
Martin Hermanus (a pseudonym)[1] v The Queen [2015] VSCA 304
Case
[2015] VSCA 304
Decision Date
CaseChat Overview and Summary
The appellant, Hermanus (a pseudonym), appealed against his conviction and sentence for sexual offences committed against his daughter in the 1970s. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant contested both the validity of his conviction and the severity of his sentence. Regarding the conviction, the appellant argued that fresh evidence had emerged that the complainant had given inconsistent accounts of the offending post-verdict, and that the defence counsel had been prevented from effectively cross-examining the complainant to highlight these inconsistencies. Additionally, the appellant claimed that the trial judge's comments concerning the behaviour of victims of sexual offending, as well as the delay in the complaint, were prejudicial and contributed to an unbalanced charge to the jury. The appellant also contended that the trial judge's comments were improper and prejudicial, and that the police evidence concerning the behaviour of victims of sexual offending was inadmissible. As for the sentence, the appellant argued that the total effective sentence of nine years’ imprisonment with a non-parole period of six years was manifestly excessive given his age, poor health, delay, and prospects of rehabilitation.
The court considered the appellant's arguments and examined the relevant legal principles. The court found that the evidence presented did not support the appellant's claims of inconsistencies in the complainant's accounts and that the defence counsel had not been prevented from effectively cross-examining the complainant. The court also held that the trial judge's comments and the police evidence did not prejudice the appellant's case to the extent that it affected the safety of the conviction. Therefore, the appeal against conviction was dismissed. However, the court found that the sentence was manifestly excessive and allowed the appeal in relation to the sentence. The court substituted a total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months, taking into account the appellant's age, health, delay, and prospects of rehabilitation.
In light of the above, the appeal against the conviction was dismissed, and the appeal against the sentence was allowed. The court substituted a total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months. This decision highlights the importance of the trial judge's role in ensuring that the jury receives a balanced charge and that the evidence presented is relevant and admissible. It also underscores the need for courts to consider the totality of the circumstances when determining an appropriate sentence, including the age, health, delay, and prospects of rehabilitation of the offender.