R v Empey - [2004] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 323 of 2003

THE QUEEN
	v.
WILLIAM CHRISTOPHER EMPEY

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2004
DATE OF JUDGMENT:	9 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 243

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CRIMINAL LAW - Sentencing - Rape - Causing serious injury intentionally - Violent rape by driving fist into victim's vagina, following by repeatedly kicking victim's head - Horrific long-term injuries - Total effective sentence of 16 years, with non-parole period of 12 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.G. Hillman, S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr A. Shwartz	Victoria Legal Aid

WINNEKE, P.:

I will invite Charles, J.A. to give the first judgment in this matter.

CHARLES, J.A.:

The appellant, who was born on 19 April 1972, pleaded guilty on 5 August last year in the Supreme Court at Melbourne to a presentment alleging one count of rape, and one count of causing serious injury intentionally. The maximum penalty for rape was 25 years', and for causing serious injury intentionally 20 years', imprisonment respectively. A plea was heard on 30 October, and the appellant then admitted nine previous convictions from two court appearances in Benalla in 1989 and 1990. The convictions included causing injury intentionally and driving under the influence of alcohol.

During the plea various victim impact statements were tendered, as also were reports from Dr Lester Walton, Mr Ian Joblin and Ms Marjan Geertsema. Four witnesses were called to give character evidence on behalf of the appellant.

On 6 November the judge sentenced the appellant on the count of rape to 14 years' and on the count of causing serious injury intentionally to 10 years' imprisonment. His Honour directed that two years of the sentence imposed on the second count be made cumulative on the first. The total effective sentence was 16 years' imprisonment and the judge fixed a non-parole period of 12 years.

On 30 July the appellant was granted leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958. He now appeals on the grounds that, first, the judge failed to give any or any sufficient weight to his pleas of guilty, and the circumstances and consequences of those pleas; secondly, that the judge failed to give any or any sufficient weight to the principle of totality; and thirdly, on the ground that the individual sentences, the total effective sentence and non-parole period are all manifestly excessive in all the circumstances. The appellant's submissions make it plain that the real issue in the appeal is manifest excess, ground 1 being treated as a particular of ground 3 and ground 2 not being argued except as an aspect of manifest excess.

It is necessary therefore to set out the facts giving rise to these offences at some length. They are taken largely from the prosecutor's opening at the plea, which was reduced to writing, and…

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 Empey

Details

AGLC: R v Empey [2004] VSCA 243
Case: [2004] VSCA 243
Decision Date: 9 December 2004

CaseChat Overview and Summary

The case of R v Empey involved the defendant, Empey, who was convicted of raping a woman and causing her serious injuries. The appeal against sentence was heard in the Court of Criminal Appeal of New South Wales. The primary issue before the court was whether the sentence imposed by the trial judge, a total effective sentence of 16 years with a non-parole period of 12 years, was manifestly excessive. The defence argued that the sentence was too harsh given the circumstances, while the prosecution contended that the sentence appropriately reflected the severity of the crime.

The court considered the brutality and premeditated nature of the attack, including the defendant's violent actions of driving his fist into the victim's vagina and repeatedly kicking her head, resulting in long-term injuries. The trial judge had carefully weighed the aggravating factors, including the intentional infliction of serious injury, the vulnerability of the victim, and the impact on her life. The Court of Criminal Appeal found that the sentence did not depart from the principle of proportionality and was not manifestly excessive, given the nature and circumstances of the offence.

In reaching its decision, the court emphasised the importance of ensuring that sentences for serious sexual offences adequately reflect the harm caused to the victim and deter similar conduct. The court concluded that the sentence imposed by the trial judge was just and appropriate, taking into account all relevant factors. Consequently, the appeal against sentence was dismissed.

The final orders of the court affirmed the sentence of 16 years with a non-parole period of 12 years, maintaining the trial judge's determination as just and appropriate for the gravity of the offence.

Orders