R v NVD - [2007] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 236 of 2006

THE QUEEN
	v.
NVD

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JUDGES:	VINCENT and NEAVE JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 OCTOBER 2007
DATE OF JUDGMENT:	23 OCTOBER 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 230	1^st Revision 2 November 2007

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Criminal law – Conviction - Applicant found guilty of one count of indecent act with a child under 16 (count 1) and one count sexual penetration of a child under 16 (count 2) – Particulars of each count referred to the ‘first occasion’ - Whether the convictions were unreasonable or against the weight of the evidence – Crown concession that application for leave to appeal against count 1 should be granted and appeal allowed – Application for leave to appeal against count 2 refused as sufficient particulars and sufficient evidence given of circumstances in which penetration occurred.

Criminal law – Sentencing – Sexual penetration of 7 year old girl - Complainant was the daughter of the applicant’s de facto partner - Sentence of six and half years on count 2 was not manifestly excessive – Trial judge did not err by treating the infecting of the complainant with chlamydia by the applicant as an aggravating factor – Given appeal against conviction on count 1 successful, applicant re-sentenced to six and half years on count 2, with a non-parole period of four years and four months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D Just	Victoria Legal Aid

VINCENT, JA:

I agree in the disposition of this matter proposed by Neave JA and I do so for the reasons advanced by her in her judgment.

NEAVE, JA:

The applicant was found guilty after a jury trial of one count of an indecent act with a child under 16 (count 1) and one count of sexual penetration of a child under 16 (count 2). The jury also determined, under s 45(7) of the Sentencing Act 1991, that at the time of the sexual penetration the complainant was under 10 years of age.

The learned trial judge sentenced the applicant to two years’ imprisonment on count 1 and six and half years’ imprisonment on count 2. He ordered that six months of the sentence on count 1 be served cumulatively on count 2, resulting in a total effective sentence of seven years with a non-parole period of five years.

The applicant originally applied for leave to appeal against the conviction on count 1 and now applies for leave to amend the application so as to seek leave to appeal against the conviction on count 2 as well. He also seeks leave to appeal against the sentences imposed.

Background

The presentment alleged that the conduct in counts 1 and 2 occurred between 4 July and 12 October 2003. At that time the applicant was 29 years old and had been in a relationship with the…

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 NVD

Details

AGLC: R v NVD [2007] VSCA 230
Case: [2007] VSCA 230
Decision Date: 23 October 2007

CaseChat Overview and Summary

The case of R v NVD involved the applicant who was convicted on two counts: one count of an indecent act with a child under 16 and one count of sexual penetration of a child under 16. The dispute centred on the validity of these convictions and the subsequent sentence imposed. The case was heard in a higher court on appeal.

The primary legal issues the court addressed were whether the convictions were unreasonable or against the weight of the evidence, and whether the sentence imposed was manifestly excessive. The applicant argued that the particulars of the charges were insufficient, particularly for count 1. The Crown conceded that the application for leave to appeal against count 1 should be granted and the appeal allowed, while the application for leave to appeal against count 2 was refused due to sufficient particulars and evidence.

The court found that while the particulars of count 1 were indeed insufficient, the evidence was sufficient to uphold the conviction for count 2. The court also held that the sentence of six and a half years for count 2 was not manifestly excessive, and the trial judge did not err in considering the infection of the complainant with chlamydia as an aggravating factor. Consequently, the applicant’s conviction on count 1 was quashed, and he was re-sentenced to six and a half years on count 2, with a non-parole period of four years and four months.

Orders