R v Rout - [2008] VSCA 87

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 369 of 2007
v
BEN JOSEPH ROUT
and
DIRECTOR OF PUBLIC PROSECUTIONS	No 401 of 2007
v
BEN JOSEPH ROUT

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JUDGES:	WARREN CJ and ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2008
DATE OF JUDGMENT:	29 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 87

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CRIMINAL LAW – Appeal against conviction – Identification evidence – Whether judge misstated evidence of identifying witness – Whether judge minimised differences between witness’s description of offender and the applicant – Whether judge failed to properly warn jury of potential for unreliability of witness’s identification of applicant – Application for leave to appeal refused.

CRIMINAL LAW – Sentence - Appeal by DPP - Whether total effective sentence of three years and six months’ imprisonment with non-parole period of 15 months’ imprisonment for offences of kidnapping, false imprisonment, threat to kill, robbery and theft manifestly inadequate - Whether aggregate sentence appropriate – Requirements of s 9(2) of the Sentencing Act1991 (Vic) - Prospect of rehabilitation – Appeal dismissed.

DPP v Felton [2007] 16 VR 214 and DPP v Grabovac [1998] 1 VR 664 considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown/Director of Public Prosecutions	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant/Respondent to appeal by DPP	Mr J P Dickinson	Slades & Parsons Solicitors

WARREN CJ:

For the reasons expressed by Ashley JA I would refuse the application for leave to appeal against conviction.

I turn then to the Director’s appeal against sentence.

The underlying facts and circumstances and the pursued grounds of appeal are contained in the reasons of Ashley JA and which I gratefully adopt.

Under Ground 2 the central issue was whether the sentencing judge in imposing an aggregate sentence properly met the sentencing obligations that lay upon him. Relevantly, his Honour may be taken to be familiar with the principles in DPP v Felton.[1] Furthermore, the Prosecutor, upon the conclusion of the pronouncement of the sentence below of an aggregate sentence of three and half years’ imprisonment with a non-parole period of 15 months, drew attention to the sentencing requirements directed in Felton. Unfortunately, his Honour did not take the opportunity to provide his reasons for the imposition of an aggregate sentence.
[1][2007] 16 VR 214, having been the sentencing judge in that case.

Whilst there is no issue that it was open to his Honour to impose an aggregate sentence the two critical components of the sentence were not articulated: first, the individual terms and secondly, the extent of concurrency and cumulation.[2] An offender, the public and an appellate court need to understand how the sentencing judge fixes the aggregate sentence. Hence the necessary reasoning process in this matter is absent, as analysed by Ashley JA. Ground 2 is made out.
[2]See R v Felton, ibid [2] and [46]–[47].

So far as Ground 1 arises the offences of the applicant were very serious. While the victim…

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 Rout

Details

AGLC: R v Rout [2008] VSCA 87
Case: [2008] VSCA 87
Decision Date: 29 May 2008

CaseChat Overview and Summary

The case of R v Rout involves an appeal against conviction and sentence, heard by the Court of Appeal in Victoria. The applicant, Rout, was convicted of various serious offences including kidnapping, false imprisonment, threats to kill, robbery, and theft. The appeal focuses on two main issues: the first pertains to the handling of identification evidence by the trial judge, specifically whether the judge misstated the evidence provided by a key witness. The second issue concerns the adequacy of the sentence imposed, with the Director of Public Prosecutions (DPP) appealing the sentence as manifestly inadequate.

The court addressed the challenge to the conviction by examining whether the trial judge properly assessed the identification evidence and its reliability. The applicant argued that the judge had misstated the evidence and failed to sufficiently warn the jury about the potential unreliability of the witness's identification. The court found that the trial judge had not misstated the evidence and that the judge had appropriately considered the differences between the witness’s description and the applicant, concluding that there was no miscarriage of justice.

In relation to the sentence, the court considered whether the total effective sentence of three years and six months, with a non-parole period of 15 months, was manifestly inadequate. The court referenced precedents such as DPP v Felton and DPP v Grabovac to assess the appropriateness of the aggregate sentence under the Sentencing Act 1991 (Vic). The court ultimately determined that the sentence was not manifestly inadequate, taking into account the seriousness of the offences and the prospects for the applicant's rehabilitation.

The appeal against conviction was dismissed, and the appeal against sentence was also dismissed. Consequently, Rout's conviction and sentence stand affirmed.

Orders