Jacob Turner (a pseudonym)[1] v The Queen - [2018] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0250

JACOB TURNER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	15 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 24
JUDGMENT APPEALED FROM:	DPP v Turner (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 20 October 2017)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Rape – Pregnancy – Plea of guilty – Complainant intellectually disabled daughter of de facto partner – Sentenced to seven years’ imprisonment – Non-parole period of five years – Whether judge erred in treating offending as an act of commission rather than omission – Whether state of mind of not giving any thought to whether the complainant was not consenting or might not be consenting rendered offender less culpable – Manifest excess – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Doogue + George Defence Lawyers
For the Crown	No appearance	John Cain, Solicitor for Public Prosecutions

TATE JA:

This is an application by Jacob Turner (‘Turner’) for leave to appeal against the sentence imposed on him by a judge of the County Court following his guilty plea to one charge of rape. He was sentenced on 20 October 2017 as follows:[2]
[2]DPP v Turner (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 20 October 2017) (‘Sentencing reasons’).

Charge on indictment Offence Maximum Sentence Cumulation

1. Rape - s 38 Crimes Act 1958 25 years 7 years N/A

Total Effective Sentence: 7 years

Non-Parole Period: 5 years

Pre-sentence detention declared: 2 days

6AAA Statement: 9 years’ imprisonment with a non-parole period of 6 years.[3]

Other relevant orders: The applicant was ordered to comply with the requirements of the Sex Offender Registration Act 2004 for 8 years.
[3]Although the judge declared a notional non-parole period of seven years under s 6AAA in his sentencing reasons, the Record of Orders signed by the judge shows a non-parole period of six years in the s 6AAA declaration.

Turner seeks leave to appeal on the following grounds:

Ground 1
The sentencing judge erred in treating the applicant’s offending as an act of commission rather than omission:
(a)the sentencing judge erred in finding the offending to be ‘predatory and opportunistic’;
(b)the sentencing judge erred in finding that the applicant’s lack of explanation for the offending betokened a lack of remorse.

Ground 2
The sentence is manifestly excessive having particular regard to:
(a)       the applicant’s level of culpability being one of inadvertence;
(b)       the nature and gravity of the offending;
(c)       the applicant’s guilty plea;
(d)      the…

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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Details

Case: [2018] VSCA 24
Decision Date: 15 February 2018

CaseChat Overview and Summary

Jacob Turner, appealing against his criminal conviction and sentence, sought leave to appeal to the High Court. Turner had pleaded guilty to raping the intellectually disabled daughter of his de facto partner. The court was tasked with deciding whether the primary judge had erred in characterising Turner’s actions as an act of commission rather than omission, and whether Turner's state of mind – not considering whether the complainant was consenting – reduced his culpability. The High Court needed to determine if the sentence was a manifest excess of judicial discretion.

Turner argued that the primary judge had mischaracterised his actions by treating the offence as an act of commission rather than an omission, which could have impacted the severity of the sentence. Turner further contended that his state of mind, which involved not giving any thought to the complainant's ability to consent, should have rendered him less culpable. The High Court considered whether these arguments were sufficient to show that the sentence was manifestly excessive, warranting leave to appeal.

The High Court found that Turner’s arguments did not establish a substantial miscarriage of justice or that the sentence was manifestly excessive. The court held that Turner’s failure to consider the complainant's capacity to consent did not significantly mitigate his culpability, and the sentence was within the appropriate range for such a serious offence. Consequently, the High Court refused Turner’s application for leave to appeal.

Orders