ISJ v The Queen

[2012] VSCA 321

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0093 S APCR 2011 0094
I S J	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, REDLICH and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 August 2012
DATE OF JUDGMENT	18 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 321
JUDGMENT APPEALED FROM	R v [I S J] (Unreported, County Court of Victoria, Judge McInerney, 8 April 2011)

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CRIMINAL LAW – Appeal against conviction – Rape – Incest – Whether the verdict on the charge of rape was unsafe and unsatisfactory – No direction required as to whether the accused believed that the complainant was consenting – Whether the complainant gave free agreement – Temporal gap between the complainant’s objection to penetration and the time of penetration left unexplored – Prosecutor failed to ask complainant whether penetration was without consent – Trial judge’s directions on the evidence as to the question of consent inadequate – Sections 37 and 37AAA of the Crimes Act 1958 – Appeal allowed on the charge of rape – Appellant convicted of alternative charge of incest – Appeal otherwise dismissed.

CRIMINAL LAW – Evidence – Rule against hearsay – Complaint evidence – Prior representations of complaint evidence led as an exception to the hearsay rule – Substantial time delay between the asserted facts and the dates on which the representations were made – Trial judge limited the use of the evidence under s 136 to buttressing credibility only – Need to comply with statutory pre-conditions under exception to credibility rule – Whether the asserted facts were ‘fresh in the memory’ of the complainant – Sections 66, 108, 136, 137 and 192 of the Evidence Act 2008 – XY v The Queen [2010] NSWCCA 181 referred to – Papakosmas v The Queen (1999) 196 CLR 29 considered – Appeal dismissed.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Appellant re-sentenced because of the successful appeal against sentence – Sentence not manifestly excessive.

CRIMINAL LAW – Appeal against sentence – Child pornography – Manifest excess – Parity – Sentencing discretion re-opened – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Galbally & O’Bryan
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

REDLICH JA
OSBORN JA:

1. Following a trial in the County Court at Melbourne, the appellant was convicted on two charges of indecent act with a child under 16 (Charges 1 and 2), five charges of incest (Charges 4, 7, 9, 11 and 13) and one charge of rape (Charge 5).[1]  All of the charges involved the complainant, who is the daughter of the appellant’s former de facto partner.  On 8 April 2011, the appellant was sentenced to a total effective sentence of nine years and six months’ imprisonment, with a non-parole period of six years and four months.  He also pleaded guilty to one charge on a second indictment[2] of making child pornography, and was sentenced to nine months’ imprisonment, to…