R v I N S - [2009] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 868 of 2006
No 833 of 2008

THE QUEEN
	v
INS

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JUDGES:	MAXWELL ACJ, VINCENT and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 January 2009
DATE OF JUDGMENT:	3 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 61

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CRIMINAL LAW – Conviction – Sexual offences against family members – Whether there should have been severance of the presentment – Whether the jury should have been discharged after a witness became emotionally distressed whilst giving evidence – Whether comments made by the trial judge were appropriate – Appeal dismissed.

CRIMINAL LAW – Sentence – Whether manifestly excessive – Whether relevant considerations were given appropriate weight – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr I D McIvor	Cohen Kirby & Iser

MAXWELL ACJ
VINCENT JA
NEAVE JA:

On 23 October 2006, the applicant was found guilty by a jury in the County Court at Bendigo on 28 counts alleging the commission of sexual offences against younger members of his family:

Presentment T01674206.2
Buggery  -  1 count (count 1)
Attempted rape              -  2 counts (counts 2 & 13)
Indecent assault             -  10 counts (counts 3, 4, 5, 6, 7, 8,
10, 11, 20 & 25)

Rape- 15 counts (counts 9, 12, 14, 15,
16, 17, 18, 19, 21, 22, 23, 24, 26, 27 & 28)

The applicant then entered a plea of guilty to two further counts of a generally similar character contained in another presentment:

Presentment T01674206.1
Indecent act with a child
under 16 - 1 count (count 1)
Incest - 1 count (count 2)

He admitted 20 prior convictions from one court appearance in October 2000, including seven counts of burglary, eight counts of theft, four counts of handling stolen goods and one count of intentionally damaging property.

After hearing a plea in mitigation of penalty, the judge on 10 November 2006 sentenced him to:

Presentment No: T01674206.2
Count 1   -  3 years’ imprisonment
Count 2  -  2 years’ imprisonment
Count 3  -  6 months’ imprisonment
Count 4  -  6 months’ imprisonment
Count 5  -  6 months’ imprisonment
Count 6  -  2 years’ imprisonment
Count 7  -  2 years’ imprisonment
Count 8  -  2 years’ imprisonment
Count 9-  3 years’ imprisonment
(cumulative)

Count 10  -  2 years’ imprisonment
Count 11  -  2 years’ imprisonment
Count 12-  3 years’ imprisonment,
(2 years cumulative)

Count 13-  2 years’ imprisonment
Count 14-  3 years’ imprisonment
Count 15-  5 years’ imprisonment
Count 16-  5 years’ imprisonment
Count 17-  5 years’ imprisonment
Count 18-  5 years’ imprisonment
Count 19-  6 years’ imprisonment,
(3 years cumulative)

Count 20- 1 years’ imprisonment
Count 21- 6 years’ imprisonment,
(4 years cumulative)

Count 22-  6 years’ imprisonment
Count 23-  5 years’ imprisonment
Count 24-  8 years’ imprisonment
Count 25-  1 year imprisonment
Count 26-  6 years’ imprisonment
Count 27-  6 years’ imprisonment
Count 28-  8…

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 I N S

Details

AGLC: R v I N S [2009] VSCA 61
Case: [2009] VSCA 61
Decision Date: 3 April 2009

CaseChat Overview and Summary

The case of R v I N S involved a defendant who was convicted of multiple sexual offences against family members. The prosecution presented a series of charges against the defendant, which included the alleged sexual abuse of a family member over a period of time. The defendant appealed both the conviction and the sentence, raising several issues for the court's consideration. The appeal raised questions about the appropriateness of the trial judge's handling of the case, including whether there should have been a severance of charges, whether the jury should have been discharged when a witness became emotionally distressed during their testimony, and whether certain comments made by the trial judge were appropriate. Additionally, the defendant argued that the sentence imposed was manifestly excessive and that relevant considerations had not been given appropriate weight.

The court carefully considered the arguments raised by the defendant. Regarding the severance of charges, the court found that there was no error in the trial judge's decision not to sever the presentment. The charges were closely related and it was appropriate for them to be considered together. The court also found that the trial judge did not abuse their discretion in deciding not to discharge the jury when a witness became upset. The emotional distress of the witness did not prevent them from giving coherent and relevant evidence, and the trial judge took appropriate steps to ensure the witness was able to continue giving evidence. Concerning the trial judge's comments, the court found that while some comments may have been inappropriate, they did not constitute a miscarriage of justice or prejudice the defendant's right to a fair trial.

In relation to the sentence, the court examined whether the sentence imposed was manifestly excessive and whether the trial judge had given appropriate weight to relevant considerations. The court found that the sentence was within the appropriate range for the offences committed and that the trial judge had properly considered all relevant factors in determining the sentence. The appeal against both the conviction and the sentence was dismissed. The trial judge's decisions were upheld, and the defendant's appeal was unsuccessful. The court confirmed the conviction and the sentence imposed by the trial court, finding no errors that warranted an intervention by the appellate court.

Orders