SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0536
| P T | Applicant |
| v | |
| THE QUEEN | |
| Respondent |
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| JUDGES | MAXWELL P, BUCHANAN and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 January 2011 |
| DATE OF JUDGMENT | 23 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 43 |
| JUDGMENT APPEALED FROM | R v P T (Unreported, County Court of Victoria, Judge Gaynor, 5 December 2008 (date of conviction) 12 February 2009 (date of sentence)) |
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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 10 (2 counts), gross indecency, indecent act with child under 16 (2 counts) – Delay in complaint – Whether applicant suffered ‘significant forensic disadvantage’ – Applicant absent because of illness during jury deliberation – Whether additional warning required – Application refused – Crimes Act 1958 (Vic) s 61(1A), Evidence Act 2008 (Vic) s 165B.
CRIMINAL LAW – Appeal – Sentence – Whether sentence of eight years’ imprisonment with non-parole period of six years manifestly excessive – Whether changes in applicant’s health constituted new evidence – Application refused.
WORDS AND PHRASES – ‘Significant forensic disadvantage’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Jeremy Harper & Associates |
| For the Crown | Mr D Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
BUCHANAN JA
WEINBERG JA:
After a trial in the County Court at Ballarat, the applicant was convicted on two counts of sexual penetration of a child under the age of 10 years (counts 1 and 2), one count of gross indecency with a child under the age of 16 years (count 4) and two counts of committing an indecent act with a child under 16 years (counts 8 and 9). He was acquitted on the remaining five counts on the presentment.
All of the alleged offending was said to have taken place at the family home. (For reasons which will become apparent, we will refer to this as ‘house one’). The victim in each case was the applicant’s stepson, PN. The offences described in counts 1, 2 and 4 were all said to have taken place on the same night in May 1990. PN was aged nine at the time. He claimed that he had been sexually abused by the applicant on a regular basis prior to the night in question. His evidence was that, on that night, the applicant came into his bedroom, as he had done many times before, and shook him by the shoulder. He said that, as was their custom, he accompanied the applicant to the lounge room. According to PN that was where the applicant normally slept, on a single bed.
PN said that the applicant told him to get undressed. He said that he removed all his clothing and got into the applicant’s bed. The applicant then undressed and joined PN in the bed. According to PN, they fondled each other’s genitals. The applicant then ordered PN to suck his penis, which PN did. This conduct constituted the first act of sexual…
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- AGLC
- PT v The Queen [2011] VSCA 43
- Case
- [2011] VSCA 43
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the delay in reporting resulted in a significant forensic disadvantage, whether the absence of the applicant from the jury deliberation process required an additional warning, and whether the sentence imposed was manifestly excessive. The court noted that the forensic disadvantage did not affect the ability to prove the applicant’s guilt. The court further held that no additional warning was required because the jury was adequately warned about the applicant’s absence. The court held that the sentence was not manifestly excessive, even taking into account the changes in the applicant’s health. The court concluded that the changes in the applicant’s health did not constitute new evidence warranting a reduction in sentence.
The appeal was dismissed, and the conviction and sentence were upheld.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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