NJ v The Queen - [2012] VSCA 256

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0115

N J	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, HARPER JA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 August 2012
DATE OF JUDGMENT	19 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 256
JUDGMENT APPEALED FROM	R v [N J] (Unreported, County Court of Victoria, Judge Lewitan, 5 May 2011)

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CRIMINAL LAW – Conviction – Sexual offences – Whether the trial judge erred in directing the jury that if, as a result of intoxication, the accused was not aware that the complainant was not or might not be consenting or was not giving any thought to whether she was not or might not be consenting then the prosecution may not be able to prove mens rea – Direction appropriate – Whether the trial judge erred in failing to direct the jury that they could take prior consensual kissing and/or intercourse into account in determining whether the appellant honestly believed that the complainant was consenting to the subsequent sexual intercourse – Direction unnecessary and may tend to confuse burden and standard of proof – Whether the trial judge erred in admitting evidence of the complainant’s injuries, or a substantial miscarriage of justice was occasioned by the admission of that evidence, given no evidence was adduced of one possible explanation of those injuries (the complainant’s earlier sexual intercourse with another man) – Forensic decision by trial counsel not to lead this evidence – Policy reasons why it is desirable for agreements to be reached by trial counsel – Appeal against conviction dismissed.

CRIMINAL LAW – Sentencing – Appellant convicted of two charges of rape and one charge of common assault – Appellant pleaded guilty to two separate charges of sexual intercourse with a child under 16 – Sentenced to 10 years’ imprisonment with non-parole period of 7 years – Whether sentencing judge erred in treating the violence used during the rapes as an aggravating feature, where appellant had been convicted of assault – The conduct the subject of the assault charge was discrete from the violence that attended the rapes – No double punishment – Whether the individual sentences, extent of cumulation and resulting total effective sentence manifestly excessive – Appellant suffered intellectual disability – R v Verdins (2007) 16 VR 269 – Individual sentences not manifestly excessive – After cumulation, total effective sentence and minimum term manifestly excessive – Appeal against sentence allowed – Appellant resentenced to 7 years 6 months’ imprisonment with a non-parole period of 5 years.

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Appearances:	Counsel	Solicitors
For the Appellant	Ms C A Boston	Haines & Polites
For the Crown	Mr C T Carr	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
HARPER JA:

We have had the considerable advantage of reading in draft the reasons for judgment of T Forrest AJA. We agree with the orders his Honour proposes, for the reasons which he gives.

We would particularly wish to endorse what his Honour…

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 NJ v The Queen

Details

AGLC: NJ v The Queen [2012] VSCA 256
Case: [2012] VSCA 256
Decision Date: 19 October 2012

CaseChat Overview and Summary

In the matter of NJ v The Queen, the appellant, NJ, appealed against his conviction and sentence for various sexual offences. The trial had resulted in a conviction for two counts of rape and one count of common assault. Additionally, the appellant had pleaded guilty to two charges of sexual intercourse with a child under 16 years of age. The High Court of Australia was tasked with determining the validity of the trial judge's directions to the jury, the admissibility of evidence, and the appropriateness of the sentence imposed.

The court considered whether the trial judge had erred in directing the jury on the impact of intoxication on the appellant's awareness of consent and whether the judge should have directed the jury to consider prior consensual acts in determining the appellant's belief in consent. The court held that while the direction on intoxication was appropriate, the direction on prior consensual acts was unnecessary and potentially confusing. The court also assessed whether the trial judge erred in admitting evidence of the complainant’s injuries, noting that while this evidence was relevant, its admission did not occasion a substantial miscarriage of justice.

The reasoning extended to the sentence imposed, where the court examined whether the sentencing judge erred in treating the violence during the rapes as an aggravating factor, despite the appellant already being convicted of assault. The court concluded that the individual sentences were not manifestly excessive, but the cumulative effect and the total effective sentence, including the non-parole period, were manifestly excessive. Consequently, the appeal against the sentence was allowed, and the appellant was resentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years.

Orders