SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0254
S APCR 2019 0052
| JASPER LEWERS (A PSEUDONYM) [1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identifying the alleged 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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| JUDGES: | PRIEST, NIALL and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 November 2019 |
| DATE OF JUDGMENT: | 21 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 272 |
| JUDGMENT APPEALED FROM: | DPP v Lewers (a Pseudonym) (County Court of Victoria, Judge Higham, 31 October 2018) (conviction); [2018] VCC 1773 (sentence) |
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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of 23 charges, including threatening to inflict serious injury, common assault, incest, making threats to kill and indecent acts with a child under 16 – Victims are applicant’s biological twin daughters – ‘Overloaded’ indictment – Whether joinder of sexual and non-sexual offences on indictment occasioned error – Whether improper cross-examination of witness should have resulted in severing of indictment – Leave to appeal refused – Charges alleging non-sexual violence and sexual offending had common factual origin – Trial counsel’s forensic decision not to apply for severance did not result in substantial miscarriage of justice – Prosecution’s cross examination cumbersome but not unfair – R v Barrell and Wilson (1979) 69 Cr App R 250, De Jesus v The Queen (1986) 61 ALJR 1 considered.
CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to total effective sentence 12 years and 3 months’ imprisonment with non-parole period of 8 years and 4 months – Whether manifestly excessive – Leave to appeal refused – Protracted period of offending attended by violence – Protection of community a primary sentencing factor.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Nicholas O’Donohue & Co |
| For the Respondent | Mr C B Boyce QC with Mr T Bourbon | John Cain, Solicitor for Public prosecutions |
PRIEST JA
NIALL JA
HARGRAVE JA:
Overview
The applicant is the biological father of twin daughters, ‘RZ’ and ‘GZ’, who were born in an African country in 2003. Shortly after they were born, the applicant fled his African home because of the political situation, leaving his daughters and their mother behind. He arrived in Australia in 2006, and was joined by his daughters in 2009.
An indictment filed in the County Court charged the applicant with 28 separate offences against his daughters. The offences alleged were of both of a sexual and non-sexual nature, and spanned a period between 7 June 2010 and 17 October 2015, when the applicant was aged between 35 and 40 years of age.[2]
[2]The applicant was born in January 1975.
Following a trial, on 15 June 2018 a jury convicted the applicant of 23 of the 28 charges.[3] In relation to RZ, the jury found him guilty of five charges, including making a threat to inflict serious injury (one charge – charge 1); making a threat to…
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- AGLC
- Jasper Lewers (a pseudonym) [1] v The Queen [2019] VSCA 272
- Case
- [2019] VSCA 272
- Decision Date
CaseChat Overview and Summary
The court determined that the joinder of charges did not occasion an error as the sexual and non-sexual offences stemmed from a common factual origin. The court held that the trial counsel’s decision not to seek severance was a forensic choice that did not result in a substantial miscarriage of justice. Regarding the cross-examination, the court found that while it was cumbersome, it was not unfair. The court dismissed the appeal against conviction and sentence, emphasising the protection of the community as a primary consideration in sentencing.
The decision in R v Barrell and Wilson and De Jesus v The Queen was considered in assessing the propriety of the joinder and the adequacy of the cross-examination. Ultimately, the court found that the appellant’s total effective sentence of 12 years and 3 months, with a non-parole period of 8 years and 4 months, was not manifestly excessive given the protracted period of offending and the attendant violence.
The High Court refused the appellant leave to appeal against both the conviction and the sentence. The court’s decision upheld the conviction and the sentence, reflecting the gravity of the offences and the need for community protection.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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