SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 151 of 2006 |
| v | |
| ANTON ALEXANDER |
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JUDGES: | CHERNOV, NETTLE and ASHLEY JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 June 2007 | |
DATE OF JUDGMENT: | 30 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 178 | |
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CRIMINAL LAW – Rape – Jury direction – Consent – Accused’s belief – Whether trial judge answered jury’s question as to mens rea – Mistaken belief by accused on question of consent not put in issue at trial – Whether trial judge required in any event to give direction on the issue of mistaken belief – Threat to kill – Whether open on evidence to conclude that statement amounted to threat to kill – McKinney warning – Circumstances where McKinney warning appropriate.
SENTENCE – Total effective sentence of five years three months’ imprisonment with non‑parole period of three years and nine months with respect to offences of rape, false imprisonment and threat to kill not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC | Ms A Cannon |
| For the Applicant | Mr M J Croucher | Dean Cole & Associates |
CHERNOV JA:
The applicant, Anton Alexander, who is now aged 55 years, was found guilty by a jury after a trial in the County Court that lasted 10 sitting days of one count of rape, one count of false imprisonment and one count of making a threat to kill. On 10 May 2006, after hearing a plea in mitigation of sentence, the sentencing judge sentenced the applicant to the following terms of imprisonment: on the count of rape (count 1) – four years, on the count of false imprisonment (count 3) – two years, and on the count of making a threat to kill (count 4) – one year. His Honour directed that one year of the sentence imposed on count 3 and three months of the sentence imposed on count 4 be served cumulatively with the sentence imposed on count 1, thereby imposing a total effective sentence of five years and three months’ imprisonment. His Honour directed that a minimum term of three years and nine months of imprisonment be served before the applicant would be eligible for parole. The applicant now seeks leave to appeal against the conviction and sentence.
Circumstances of the offending
Before dealing with the grounds of the applications, it is necessary to set out briefly the circumstances of the offending and of the applicant. For a period of 17 years, up to 2001, the applicant and the complainant lived in a de facto relationship. In 2001 they separated and lived in separate premises. Nevertheless, they continued to have an ongoing relationship which the sentencing judge described as being “occasionally sexual”. They separated by agreement on a number of occasions over this period, but after some time, they resumed their relationship. In about the mid 1990s, the tension between them increased because of the complainant’s awareness that, on a visit in 1993 to…
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- AGLC
- R v Alexander [2007] VSCA 178
- Case
- [2007] VSCA 178
- Decision Date
CaseChat Overview and Summary
The appeal raised issues about the trial judge’s direction to the jury on consent and mens rea, and the adequacy of the sentence. The court had to consider whether the trial judge was required to give a direction to the jury on the issue of mistaken belief by the accused in relation to consent. The court also had to consider whether the evidence was sufficient to conclude that the accused’s statement amounted to a threat to kill, and whether the trial judge should have given a McKinney warning. Finally, the court had to consider whether the sentence was manifestly excessive.
The court found that the trial judge was not required to give a direction to the jury on the issue of mistaken belief in relation to consent, as the defence of consent was not put in issue at trial. The court found that the evidence was sufficient to conclude that the accused’s statement amounted to a threat to kill, and that the trial judge should have given a McKinney warning. However, the court found that the sentence was not manifestly excessive, and dismissed the appeal against conviction and sentence. The appeal was dismissed in its entirety.
Orders
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Evidence
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