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…
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- AGLC
- P R W v The Queen [2011] VSCA 381
- Case
- [2011] VSCA 381
- Decision Date
CaseChat Overview and Summary
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
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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