R. v. Pope - [2000] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 111 of 1999

THE QUEEN

BARRY MASON POPE

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JUDGES:	PHILLIPS, C.J., CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1-2 May 2000
DATE OF JUDGMENT:	15 June 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 108

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CRIMINAL LAW – Conviction – Aggravated burglary and attempted rape – Charge to be read in light of common ground at trial – Propensity – Elements of aggravated burglary – "Offensive weapon" – Proviso – Sentence – Non-parole period – Protection of the community – General deterrence moderated – Crimes Act 1958, ss.77, 321N, 568(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S. Gillespie-Jones	Byrne & Clark
For the Respondent	Mr P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Callaway, J.A., in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.

CALLAWAY, J. A.:

The applicant, who is now aged 46, was presented in the County Court at Shepparton on one count of aggravated burglary (count 1) and two counts of attempted rape (counts 2 and 3). He pleaded guilty to the first count of attempted rape. Having been found guilty on the other two counts on the presentment, the applicant admitted 13 previous convictions from five court appearances. Only one was for a sexual offence, assault with intent to rape, for which he was released on a bond in September 1984.[1] His last court appearance was in August 1989. After hearing a plea for leniency on his behalf the learned trial judge sentenced the applicant to eight years' imprisonment on count 1 and to six years' imprisonment on each of counts 2 and 3. His Honour directed that three years of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 11 years' imprisonment. A non-parole period of nine years was fixed and a declaration made regarding pre-sentence detention. The applicant seeks leave to appeal against both conviction and sentence.
[1]Upon breach of the bond he was sentenced to six months' imprisonment. The offence bore a resemblance to the instant offences in that he had ordered the victim to undress under the threat of a knife.

There were 11 lettered grounds of appeal against conviction, of which four were formally abandoned. I do not think it necessary to set out the other grounds. As the argument developed, it became clear that there were three substantive complaints: first, that the learned judge's directions on aggravated burglary were incomplete; secondly, that his Honour should have warned the jury against propensity reasoning; and, thirdly, that the jury were not instructed as to the elements of an attempt. It was also submitted that the verdict on count 1[2] was unsafe in the limited sense that the charge did not grapple with the real issues in the case 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. Pope

Details

AGLC: R. v. Pope [2000] VSCA 108
Case: [2000] VSCA 108
Decision Date: 15 June 2000

CaseChat Overview and Summary

In the case of R. v. Pope, the respondent was convicted of aggravated burglary and attempted rape. The case was heard in a court of criminal appeal in Australia. The respondent was convicted on the basis of an aggravated burglary, which included an attempted rape, under the provisions of the Crimes Act 1958. The appeal was focused on several legal issues, including the adequacy of the charge to the jury, the definition of an "offensive weapon," and the appropriateness of the sentence imposed.

The court examined whether the trial judge had adequately charged the jury, considering the common ground between the parties. It was determined that the trial judge had done so appropriately, taking into account the evidence presented during the trial. The court also addressed the respondent's contention that the charge did not encompass all the elements of aggravated burglary, specifically whether the weapon used was an "offensive weapon." The court found that the definition of an "offensive weapon" under the Crimes Act 1958 was satisfied, and the charge was properly framed. Furthermore, the court assessed the proportionality of the sentence, considering the non-parole period and the need for general deterrence and protection of the community.

The court concluded that the sentence imposed was appropriate, taking into account the seriousness of the offences and the need for general deterrence. The court held that the non-parole period was not excessive, and the sentence reflected the gravity of the crimes committed. The appeal was ultimately dismissed, and the conviction and sentence were upheld.

Orders