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R v Alexander

R v Alexander

Case [2007] VSCA 178 30 August 2007

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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 Solicitor for Public Prosecutions
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…

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 R v Alexander

Details

AGLC: R v Alexander [2007] VSCA 178
Case: [2007] VSCA 178
Decision Date: 30 August 2007

CaseChat Overview and Summary

The appellant was convicted of rape, false imprisonment, and threatening to kill. The trial judge directed the jury on the mens rea requirements for the offences and on the defence of consent. The appellant was sentenced to a total effective sentence of five years and three months’ imprisonment, with a non-parole period of three years and nine months. The appellant appealed against conviction and sentence.

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