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PT v The Queen

PT v The Queen

Case [2011] VSCA 43 23 February 2011

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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…

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 PT v The Queen

Details

AGLC: PT v The Queen [2011] VSCA 43
Case: [2011] VSCA 43
Decision Date: 23 February 2011

CaseChat Overview and Summary

PT was convicted of two counts of sexual penetration of a child under 10, two counts of indecent acts with a child under 16, and one count of gross indecency. PT appealed against his conviction and sentence. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. PT argued that the delay in reporting the offences resulted in a significant forensic disadvantage. PT further argued that the absence of the applicant from the jury deliberation process due to illness necessitated an additional warning, and that the sentence imposed was manifestly excessive due to changes in his health.

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