R v Pignataro - [2003] VSCA 54

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 37 of 20002

THE QUEEN
	v.
RAYMOND PIGNATARO

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and WARREN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 April 2003
DATE OF JUDGMENT:	13 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 54

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Criminal law - Indecent act with child under 16, rape, attempted rape, assault with intent to rape - Whether conviction on one count inconsistent with acquittal on all other counts - Whether scrutiny warning required by reason of two years' delay between alleged offences and applicant's being charged - Whether conviction unreasonable or cannot be supported having regard to evidence - Sentence - Weight to be given to good character - Interpretation of jury's verdicts - Delay in complaining - Prospects of rehabilitation and specific deterrence - Whether sentence manifestly excessive - Effect of Court's reconciling verdicts differently from sentencing judge - Whether different sentence should be passed - Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.B. Kidd	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr A.J. Howard, Q.C.	Julian Teh

CALLAWAY, J.A.:

The applicant, who is now aged 41, was presented in the County Court at Bendigo on two counts of committing an indecent act with a child under the age of 16 (counts 1 and 5), two counts of digital rape (counts 2 and 3) and one count of attempted penile rape (count 4). After a short trial occupying only three days, the applicant was acquitted on counts 1, 2, 3 and 4 and an alternative to count 4 but convicted on count 5. He had no previous convictions other than a speeding offence, for which a fine was imposed and he lost his licence for one month. Following a plea for leniency on his behalf, the applicant was sentenced to two years' imprisonment, of which service of 16 months was suspended for an operational period of two years. He seeks leave to appeal against both conviction and sentence.

There are three grounds of appeal against conviction:

"1.The learned trial judge erred in failing to provide to the jury a warning that, in all the circumstances of the case, it was unsafe [sic] to convict the applicant/accused on the uncorroborated evidence of the complainant.
2.The guilty verdict on count 5 is inconsistent with the verdicts of acquittal on counts 1, 2, 3 and 4 such that a miscarriage of justice has occurred.
3.The conviction is unsafe and unsatisfactory in all the circumstances."

Before turning to counsel's submissions I shall say something briefly about the facts, supplementing that account if necessary as each of the grounds falls to be considered.

At the time of the alleged offences the complainant was aged 15. The applicant was a family friend and also a business associate of her parents. Both families lived in or near Bendigo. They shared an interest in car racing and would attend race meetings together. The complainant sometimes assisted the applicant at his business premises by…

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 Pignataro

Details

AGLC: R v Pignataro [2003] VSCA 54
Case: [2003] VSCA 54
Decision Date: 13 May 2003

CaseChat Overview and Summary

In the case of R v Pignataro, the defendant appealed against his conviction for indecent acts with a child under 16, rape, attempted rape, and assault with intent to rape. The matter was heard in the High Court of Australia. The crux of the appeal lay in whether the conviction on one count was inconsistent with the acquittal on all other counts, the necessity for a scrutiny warning due to the two-year delay between the alleged offences and the applicant's being charged, and the reasonableness of the conviction given the evidence. Additionally, the appeal contested the sentence's severity, considering the weight of the applicant's good character, the interpretation of the jury's verdicts, the delay in reporting the offences, the prospects of rehabilitation and specific deterrence, and whether the sentence was manifestly excessive. The court also examined the effect of reconciling the verdicts differently from the sentencing judge and whether a different sentence should be imposed.

The High Court considered whether the conviction on one count of indecent act was inconsistent with the acquittal on all other counts. It assessed whether a scrutiny warning was necessary due to the two-year delay between the alleged offences and the applicant being charged. The court further evaluated whether the conviction was unreasonable or could not be supported by the evidence. The appeal also contested the sentence's severity, taking into account the applicant's good character, the jury's verdicts' interpretation, the delay in reporting the offences, and the prospects of rehabilitation and specific deterrence. The court examined whether the sentence was manifestly excessive and the effect of reconciling the verdicts differently from the sentencing judge. It deliberated on whether a different sentence should be passed.

The High Court found that the applicant's convictions and sentences were sound and dismissed the appeal. The court determined that the conviction on one count was not inconsistent with the acquittal on all other counts and that no scrutiny warning was required due to the delay. It held that the conviction was reasonable and supported by the evidence. The court also found that the sentence was not manifestly excessive, considering the applicant's good character, the delay in reporting the offences, and the prospects of rehabilitation and specific deterrence. The court further noted that while it had reconciled the verdicts differently from the sentencing judge, this did not warrant a different sentence. Consequently, the appeal was dismissed, and the applicant's convictions and sentences were upheld.

The High Court made no order as to costs. The court dismissed the appeal, affirming the applicant's convictions for indecent acts with a child under 16, rape, attempted rape, and assault with intent to rape, as well as the sentences imposed. The court's decision stood as the final word on the matter, and no further appeals could be made.

Orders