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Neubecker v The Queen

Neubecker v The Queen

Case [2012] VSCA 58 4 April 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0035

BRETT NEUBECKER	Applicant
	v
THE QUEEN	Respondent

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JUDGES	Neave, Mandie JJA and Cavanough AJA
WHERE HELD	Melbourne
DATE OF HEARING	14 March 2012
DATE OF JUDGMENT	4 April 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 58
JUDGMENT APPEALED FROM	Director of Public Prosecutions v Brett Neubecker (Unreported, County Court of Victoria, Judge Gucciardo, 11 February 2011)

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CRIMINAL LAW — Appeal against conviction — Persistent sexual abuse of child under 16 years — Jury directions — Whether judge required to direct jury that evidence of uncharged acts must be established beyond reasonable doubt — Whether judge gave such a direction —R v Sadler (2008) 20 VR 69 considered — Appeal dismissed.

CRIMINAL LAW — Application for leave to appeal against sentence — Whether total effective sentence of 5 years and 6 months’ imprisonment, with non-parole period of 3 years and 6 months manifestly excessive — Whether sufficient weight given to applicant’s youth —Application for leave refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Paul Vale Criminal Law
For the Respondent	Mr D Trapnell SC, with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
MANDIE JA:
CAVANOUGH AJA:

Introduction

Brett Neubecker (‘the applicant’) was convicted by a County Court jury of one count of persistent sexual abuse of JF, a child under the age of 16 years, contrary to s 47A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years’ imprisonment.[1]
[1]Crimes Act 1958, s 47A(4).

After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant, who was then aged 22 years, to a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 6 months.

The applicant now appeals, with leave, against his conviction, and seeks leave to appeal against his sentence.

Background

The offence of persistent sexual abuse requires proof that the accused committed a sexual offence of a specified kind[2] on at least three separate occasions.[3] At trial, the Crown relied on evidence of seven separate offences, which were allegedly committed between 1 January 2007 and 31 July 2008 when JF was aged between 12 and 13 years and the applicant was between 18 and 20 years old.
[2]Offences falling within Subdivisions 8A, 8B or 8C of Part 1, Division 1 of the Crimes Act 1958.
[3]Crimes Act 1958, s 47A(2).

The applicant got to know the complainant and his family after he became friends with the complainant’s oldest brother, BF, several years before the offence was committed. During the period of offending, the complainant lived with his mother and a younger brother at Crib Point. BF was living with friends on French Island, and the complainant visited him there from time to time. The applicant resided at the French Island house for a short time. In April 2007, he moved into 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.

Continue reading Neubecker v The Queen

Details

AGLC: Neubecker v R [2012] VSCA 58
Case: [2012] VSCA 58
Decision Date: 4 April 2012

CaseChat Overview and Summary

Neubecker was convicted by a jury of persistent sexual abuse of a child under 16 years of age. The accused appealed against his conviction on the basis that the trial judge failed to properly direct the jury on the need for the prosecution to prove the uncharged acts beyond reasonable doubt. The appeal was dismissed. Neubecker also applied for leave to appeal against his sentence, arguing that the total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years and 6 months, was manifestly excessive. The application was refused.

The legal issues before the court were whether the trial judge was required to direct the jury that the evidence of uncharged acts must be established beyond reasonable doubt, whether such a direction was given, and whether the sentence was manifestly excessive. The court considered the relevant principles regarding jury directions and the circumstances of the case. It was determined that the trial judge had provided an adequate direction to the jury regarding the uncharged acts, and that the sentence imposed was not manifestly excessive. The court found that the trial judge's directions to the jury were sufficient and that the sentence was not manifestly excessive. The accused's appeal against conviction was dismissed, and his application for leave to appeal against sentence was refused.

Orders