R v Davies - [2005] VSCA 90

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 342 of 2002

THE QUEEN
	v.
ANDREW TIMOTHY DAVIES

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JUDGES:	CHARLES and NETTLE, JJ.A. and HANSEN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2004
DATE OF JUDGMENT:	21 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 90

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CRIMINAL LAW – Conviction – Rape and abduction – Identification – Evidence of refusal to participate in identification parade – Video identification procedure – Jury granted access to videos of identification.

SENTENCE – Serious sexual offender – Indefinite term of imprisonment – Circumstances in which indefinite sentence may be imposed – Relevance of offender’s prior criminal history – Appeal allowed – Sentence of 16 years and non-parole period of 12 years substituted – Sentencing Act 1991 (No. 49) ss.18A, 18B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. with Ms C. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr S.R. Johns	Robert Stary & Associates

CHARLES, J.A.:
NETTLE, J.A.:

On 12 December 2002, after a trial lasting almost three weeks, the applicant was convicted in the County Court at Melbourne of two counts of abduction and two counts of rape. He was sentenced to be imprisoned for an indefinite term with eleven years as the non-parole period that would have been fixed if a fixed term of imprisonment had been imposed. He now applies for leave to appeal against conviction and sentence.

The trial judge described the offences as appalling and abhorrent to the general community, and that does not overstate the position. The victims were two six year old girls and the offences consisted of physically detaining and digitally raping them as they played on a Saturday afternoon in the playground of a primary school in a country town.

The offences occurred on Saturday 19 May 2001. The two girls and the eight year old sister of one of them walked together to a local milk bar, bought some sweets and then walked to the school in order to play on the playground equipment. On their way from the shop to the school they stopped at a garden nursery located at the intersection of the highway which ran through the town. They looked at some flowers and continued up the street to the school grounds. The applicant saw them as they moved towards the school. He entered the school grounds shortly after they did and sat at a wooden picnic table near to where they were playing, and he smiled at them. After some time the eight year old girl left the two younger girls and went off to the toilet.[1] While she was away in the toilet the applicant took the two six year old girls forcibly by the shoulder, or by the hand, and compelled them to accompany him into one of the school classrooms. Those actions comprised the substance of the abduction counts (counts 1 and 2).
[1]The toilets and classrooms were unlocked for cleaning.

The applicant then told one of…

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 Davies

Details

AGLC: R v Davies [2005] VSCA 90
Case: [2005] VSCA 90
Decision Date: 21 April 2005

CaseChat Overview and Summary

The defendant in the case of R v Davies was convicted of rape and abduction, and subsequently appealed his sentence. The trial court had granted the jury access to videos of an identification parade, despite the defendant's refusal to participate. The appeal centred on the admissibility of this evidence and the appropriateness of the sentence imposed. The Court of Appeal needed to determine whether the trial judge erred in allowing the jury to view the videos and whether the sentence imposed was excessive.

The Court of Appeal found that the trial judge did not err in allowing the jury to view the videos, as the defendant's refusal to participate did not render the identification procedure invalid. The court also considered the relevance of the defendant's prior criminal history in determining the appropriate sentence. The court held that while the defendant's history was a relevant factor, it was not the sole determinant in imposing an indefinite term of imprisonment. The Court of Appeal substituted the sentence of 16 years with a non-parole period of 12 years, finding the original sentence to be excessive.

The Court of Appeal held that the trial judge did not err in allowing the jury to view the videos of the identification parade, despite the defendant's refusal to participate. The court also found that the sentence imposed was excessive, and substituted it with a sentence of 16 years imprisonment with a non-parole period of 12 years. The Court of Appeal considered the defendant's prior criminal history in determining the appropriate sentence, but held that it was not the sole determinant in imposing an indefinite term of imprisonment. The appeal was allowed, and the substituted sentence was upheld.

Orders