Jacob Turner (a pseudonym)[1] v The Queen (No 2) - [2018] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 250

JACOB TURNER (a pseudonym)[1]	Applicant
v
THE QUEEN (No 2)	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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ELECTION TO HAVE AN APPLICATION FOR LEAVE TO APPEAL DETERMINED BY
THE COURT OF APPEAL PURSUANT TO S 315 OF THE
CRIMINAL PROCEDURE ACT 2009

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JUDGES:	PRIEST and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	26 July 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 181
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 – Election to renew application for leave to appeal against sentence pursuant to s 315(2) of the Criminal Procedure Act 2009 – Rape of intellectually disabled daughter of de facto partner – Pregnancy – Plea of guilty – Sentenced to seven years’ imprisonment with non-parole period of five years – Whether judge erred in treating offending as an act of commission rather than omission – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

PRIEST JA
HARGAVE JA:

During the period of May to July 2014 the applicant raped ‘BLS’, the intellectually disabled daughter of his de facto partner.

Ultimately, he pleaded guilty in the County Court to a charge of rape.[2] The indictment alleged that between 1 May and 31 July 2014, the applicant raped BLS

by intentionally sexually penetrating her by introducing his penis into her vagina without her consent, while being aware that she was not consenting or might not be consenting, or while not giving any thought to whether she was not consenting or might not be consenting.

[2]Crimes Act 1958, s 38(1). The maximum penalty is 25 years’ imprisonment.

The applicant’s crime came to light in late July 2014, after BLS complained of being unwell. The applicant took her to a doctor. A pregnancy test showed her to be pregnant. Subsequently, on 9 October 2014, the pregnancy was terminated, consent for that procedure having been given by the Victorian Civil and Administrative Tribunal.[3] Biological material obtained from the procedure was sent to the Victorian Police Forensic Services Centre for DNA examination. The applicant was revealed to be the father.
[3]See Guardianship and Administration Act 1986, s 39.

At the time of the offending, the applicant was aged 52, and BLS was aged 21. BLS has an IQ of 49. Her intellectual disability is such that 99.9 per cent of the adult population function at a higher level than she does. She functions at the level of a primary school child and requires full time care to carry out conceptual tasks and the decision-making of day to day life. A psychiatrist, who assessed BLS on 11 March 2017, concluded that, as a result…

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 181
Decision Date: 26 July 2018

CaseChat Overview and Summary

In Jacob Turner (a pseudonym) v The Queen (No 2), the High Court considered an application for leave to appeal against a sentence imposed by the Supreme Court of Victoria. Turner, who had pleaded guilty to raping his intellectually disabled daughter, resulting in her pregnancy, was sentenced to seven years' imprisonment with a non-parole period of five years. The primary legal issues before the court were whether the trial judge erred in characterising Turner's actions as a commission rather than an omission and whether the sentence was manifestly excessive.

The court meticulously examined the trial judge's characterisation of Turner's actions. It determined that the judge's classification of the offence as a commission was appropriate, given Turner's active role in raping his daughter. Furthermore, the court rejected the argument that the sentence was manifestly excessive, considering the heinous nature of the crime and the vulnerable status of the victim. The High Court concluded that the sentence was within the range of appropriate penalties for such a serious offence, given the circumstances and the principles of sentencing in similar cases.

Consequently, the High Court denied Turner's application for leave to appeal. The court found no grounds to interfere with the trial judge's assessment of the facts or the sentence imposed. The refusal of leave to appeal confirms the finality of the original sentencing decision, underscoring the severity of Turner's crimes and the court's commitment to ensuring that sentences reflect the gravity of such offences.

Orders