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P R W v The Queen

P R W v The Queen

Case [2011] VSCA 381 24 November 2011

Admissibility of Evidence

Sentencing

Incest

Committing an indecent act with a child

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0025
PRW	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and WHELAN and ROBSON AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2011
DATE OF JUDGMENT/ORDER:	24 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 381
JUDGMENT APPEALED FROM:	Unreported (County Court of Victoria at Melbourne, Judge Mullaly, date of sentence 5 February 2010)

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CRIMINAL LAW – Incest and committing an indecent act with a child – Admissibility of a previous representation by the complainant pursuant to s 41D of the Evidence Act 1958 (Vic) – Previous representation related to uncharged acts – Denial of making the previous representation by the complainant in evidence at trial – Questions asked of complainant by trial judge not improper – Questions resolved ambiguity in the evidence – Verdicts not unreasonable notwithstanding defects in the Crown case.

CRIMINAL LAW – Sentence – Incest and committing an indecent act with a child – Sentencing judge took into account offender’s mental state and physical health – Relevance of protective custody – Total effective sentence of 9 years and 9 months with a minimum term of 7 years and 6 months’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Victoria Legal Aid (Mr N Button)
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

After a trial in the County Court the applicant was found guilty on three counts of incest (counts 1, 4 and 5) and two counts of committing an indecent act with a child under the age of 16 (counts 2 and 3). A plea was conducted and the applicant was sentenced to be imprisoned for a term of six years on each of the counts of incest, for a term of 18 months on one count of an indecent act with a child under the age of 16 and for two years on the other count of indecent act with a child under the age of 16. With a measure of cumulation, a total effective sentence of nine years and nine months’ imprisonment, with a minimum term of seven years and six months’ imprisonment, was imposed upon the applicant.

The applicant seeks leave to appeal against conviction and sentence.

The offences were alleged to have occurred between January and June 1999. The complainant was the applicant’s stepdaughter. At the time of the alleged offences the complainant was aged between five and six years and the applicant was aged between 34 and 35 years.

The complainant was the principal Crown witness. She said that the applicant would regularly enter her bedroom to say good night. Before the complainant commenced school in February 1999, the applicant was in the habit of entering her bedroom once she had gone to bed. She said that he would pull down the blankets and pull her pyjama pants down to her knees or lower, exposing her vagina. She said the applicant would…

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 P R W v The Queen

Details

AGLC: P R W v The Queen [2011] VSCA 381
Case: [2011] VSCA 381
Decision Date: 24 November 2011

CaseChat Overview and Summary

The case of P R W v The Queen involves an appeal by the defendant against his conviction and sentence for charges of incest and committing an indecent act with a child. The defendant was convicted following a trial in the County Court of Victoria. The central issue in the appeal was the admissibility of a previous representation made by the complainant under section 41D of the Evidence Act 1958 (Vic), as well as the propriety of the trial judge's questions to the complainant during the trial. Additionally, the appeal addressed the appropriateness of the sentence imposed by the sentencing judge.

The court examined whether the trial judge improperly questioned the complainant regarding a previous representation concerning uncharged acts. The court concluded that the questions were not improper as they were aimed at resolving ambiguity in the evidence. The court found that the complainant's denial of making the previous representation did not render the evidence inadmissible, and the trial judge's questions helped clarify the evidence for the jury. The court further held that the verdicts were not unreasonable despite some defects in the Crown's case.

In relation to the sentence, the court assessed whether the sentencing judge appropriately considered the defendant's mental state and physical health. The court found that the judge had adequately taken these factors into account. The relevance of protective custody was also considered, and the court held that the total effective sentence of 9 years and 9 months with a minimum term of 7 years and 6 months was not manifestly excessive. The appeal against conviction and sentence was dismissed.

The court confirmed the defendant's conviction and sentence, upholding the decisions made by the County Court of Victoria. The court found that the trial judge's questions were proper and did not prejudice the defendant, and that the sentence imposed was not manifestly excessive given the circumstances of the case.

Orders