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Jurj v The Queen

Jurj v The Queen

Case [2016] VSCA 57 4 April 2016

Prosecutorial Discretion

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0120

ROSS STEFAN JURJ	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0121

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ROSS STEFAN JURJ	Respondent

S APCR 2015 0122

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
DANIEL MIFTODE	Respondent

S APCR 2015 0125

DANIEL MIFTODE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 November 2015
DATE OF JUDGMENT:	4 April 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 57
JUDGMENT APPEALED FROM:	DPP v Miftode (Unreported, County Court of Victoria, Judge Gucciardo, 25 May 2015)

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CRIMINAL LAW – Appeal – Conviction – Rape – Jury directions – Forensic disadvantage warning – Propensity warning – Separate consideration direction – Whether directions adequate – Whether verdicts unsafe – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape – Multiple rapes by co-offenders – Child victim (14 y.o.) – Prolonged and repeated conduct – Victim degraded and humiliated – Youthful offenders – Delay – Rehabilitation – Residual discretion – Sentences manifestly inadequate – Appeals allowed – Respondents resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant and Respondent, Mr Jurj	Mr T Kassimatis with Ms A I Burchill	Valos Black & Associates
For the Applicant and Respondent, Mr Miftode	Mr P F Tehan QC with Mr A S Dickenson	Thexton Lawyers
For the Crown	Mr J Champion SC with Ms K Argiropoulos	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
BEACH JA:

Introduction

The applicants (‘RSJ’ and ‘DM’) were each convicted, after a trial, of multiple charges of raping the same victim (T). T was 14 at the time of the alleged offending. RSJ was convicted of five charges of rape (three as principal offender, and two as aider and abettor) and one charge of sexual penetration of a child under 16. DM was convicted of 10 charges of rape (seven as principal offender, and three as aider and abettor).

RSJ received a total effective sentence of five years and five months’ imprisonment, with a non-parole period of three years and seven months. DM received a total effective sentence of six years and nine months’ imprisonment, with a non-parole period of four years and three months.

Each of the applicants seeks leave to challenge his conviction, while the Director of Public Prosecutions contends that the sentences are manifestly inadequate.

For reasons which follow, we would refuse both applications for leave to appeal against conviction. We would allow each of the Director’s appeals against sentence. We would resentence DM to a total effective sentence of 12 years and two months’ imprisonment and RSJ to a total effective sentence of nine years and six months’ imprisonment.

A. THE CONVICTION APPEALS

The applications for leave to appeal against conviction raise three complaints: first, a complaint concerning the judge’s direction on the issue of the forensic disadvantage suffered by RSJ and DM as a result of the delay between the alleged…

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 Jurj v The Queen

Details

AGLC: Jurj v The Queen [2016] VSCA 57
Case: [2016] VSCA 57
Decision Date: 4 April 2016

CaseChat Overview and Summary

Jurj v The Queen involved an appeal by the respondents against their convictions and sentences for multiple rapes of a 14-year-old child. The respondents were convicted of raping the victim on separate occasions, with each incident involving prolonged and repeated acts that degraded and humiliated the child. The case was heard in the High Court of Australia, which exercised its appellate jurisdiction over the respondents’ convictions and sentences.

The primary legal issues in the appeal were whether the jury directions were adequate, specifically regarding the forensic disadvantage warning, the propensity warning, and the direction to consider each offence separately. The respondents argued that the trial judge's directions were inadequate, potentially leading to unsafe and unreliable verdicts. Additionally, the Crown appealed the sentences imposed on the respondents, contending that they were manifestly inadequate given the severity and nature of the crimes committed against a child.

The court found that the trial judge's directions to the jury were sufficient and did not prejudice the respondents. The directions provided to the jury regarding the forensic disadvantage, propensity evidence, and separate consideration of each offence were considered adequate. Consequently, the appeals against the convictions were dismissed. Regarding the sentences, the court determined that the sentences imposed on the respondents were manifestly inadequate. Considering the prolonged and repeated nature of the offences, the degradation and humiliation inflicted on the child, and the youthful age of the offenders, the court held that the sentences did not adequately reflect the seriousness of the crimes. The appeals against the sentences were allowed, and the respondents were resentenced.

The High Court's decision underscored the importance of appropriate jury directions in criminal trials and the necessity for sentences to reflect the gravity of the crimes, particularly when involving vulnerable victims and youthful offenders. The court's refusal of leave to appeal the convictions and its allowance of the appeal against the sentences highlighted the need for a balanced approach in criminal sentencing, ensuring that justice is both served and seen to be done.

Orders