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Landale (a pseudonym) v The Queen

Landale (a pseudonym) v The Queen

Case [2022] VSCA 121 24 June 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0067

JAMIE LANDALE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	KYROU, T FORREST and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2022
DATE OF JUDGMENT:	24 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 121
JUDGMENTS APPEALED FROM:	DPP v Landale (a pseudonym) (Unreported, County Court, Judge Allen, 9 August 2018) (Conviction); [2019] VCC 19 (Sentence)

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CRIMINAL LAW – Conviction – Application for extension of time within which to seek leave to appeal – Rape – Whether verdicts inconsistent – Whether verdicts depended upon assessment of victim’s reliability and credibility – Pathway of reasoning open to jury – Clear differences between events subject of charges – MacKenzie v The Queen (1996) 190 CLR 348, applied – Extension of time refused.

CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal – Fresh evidence – Victim impact statement described difficulty trusting men – Where victim married shortly after sentencing – Whether marriage demonstrated true significance of facts existing at time of sentence – Extension of time refused.

CRIMINAL LAW – Sentence – Application for extension of time within which to seek leave to appeal – Manifest excess – Totality – Total effective sentence of 11 years – Base sentence of 5 years and 6 months for rape – 2 years’ cumulation for another charge of rape – Offences occurred within 10 minutes of each other, in same location – Where applicant pleaded not guilty – Significant criminal history – Background of family violence – Principal sentencing purpose of community protection – Extension of time refused.

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Counsel
Applicant:		Ms CA Boston with Ms H Canham
Respondent:		Ms DI Piekusis QC with Mr G Buchhorn
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA
WALKER JA:

Introduction and summary of conclusions

The applicant was convicted of four charges of rape, one charge of false imprisonment and two charges of common law assault. He was acquitted on one charge of rape and two charges of false imprisonment. He was sentenced to a total effective sentence of 11 years’ imprisonment, with a non-parole period of 7 years and 6 months, as follows:

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Rape[2] (penile/oral penetration) 25 years 4 years 18 months

2 Rape (penile/oral penetration) 25 years 4 years and 6 months 18 months

3 Common law assault 5 years 6 months 2 months

5 False imprisonment[3] 10 years 6 months 2 months

6 Common law assault 5 years 9 months 2 months

9 Rape (penile/vaginal penetration) 25 years 5 years 2 years

10 Rape (penile/vaginal penetration) 25 years 5 years and 6 months Base

Total Effective Sentence: 11 years’…

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 Landale (a pseudonym) v The Queen

Details

AGLC: Landale (a pseudonym) v The Queen [2022] VSCA 121
Case: [2022] VSCA 121
Decision Date: 24 June 2022

CaseChat Overview and Summary

The matter before the court was an application for an extension of time to seek leave to appeal against conviction and sentence in a case involving a conviction for rape. The applicant, referred to as Landale, sought an extension of time to appeal on several grounds, including inconsistency of verdicts, the reliability and credibility of the victim, fresh evidence concerning the victim's trust in men post-marriage, and the manifest excess of the sentence. The appeal was heard in the High Court of Australia.

The legal issues before the court were whether the verdicts were inconsistent, whether they depended on the assessment of the victim's reliability and credibility, and whether the sentence imposed was manifestly excessive. The court also needed to determine if there was fresh evidence that warranted an extension of time to appeal and if the sentence reflected the true significance of the facts at the time of sentencing.

The court found that the verdicts were not inconsistent as there were clear differences between the events subject of the charges, and the pathway of reasoning open to the jury allowed for separate consideration of each charge. Regarding the victim's reliability and credibility, the court determined that these issues were properly before the jury and did not warrant an extension of time. As for the fresh evidence concerning the victim's trust in men post-marriage, the court found that the marriage did not demonstrate the true significance of the facts existing at the time of sentencing. Finally, the court held that the sentence, although severe, was not manifestly excessive when considering the totality of the circumstances, including the applicant's significant criminal history and the principle of community protection.

The High Court refused the application for an extension of time to seek leave to appeal. The court held that none of the grounds presented by Landale were sufficient to warrant an extension of time. The court emphasised the importance of adhering to time limits for seeking leave to appeal and the need for compelling reasons to justify an extension.

Orders