R v Rowley - [2007] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 229 of 2006

THE QUEEN
	v
MARK ROWLEY

---

JUDGES:	VINCENT, EAMES and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2007
DATE OF JUDGMENT:	11 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 94

---

Criminal law – Sentence – Rape – Delay – Plea of guilty at first opportunity – Intervention of judge followed by exceptional delay before sentence – Rehabilitation – Offender and victim resume relationship and have a child – Intellectual disability – Character evidence – Victim declines to provide a victim impact statement – Whether absence of fault on part of prosecutor relevant as to effect of delay – R v Tiburcy [2006] VSCA 244 – Appeal allowed – Re-sentenced to 3 years’ imprisonment with 12 months non-parole period.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Kelvin Legg, Solicitor

VINCENT JA:

I will invite Eames JA to deliver the first judgment.

EAMES JA:

The appellant appeals by leave against sentence for rape imposed by a judge in the County Court. The offence occurred on 7 March 2003, when the appellant was aged 26 years. He was not sentenced until 19 June 2006, when he was aged 29 years. The long gap between the commission of the offence and the date of sentence is but one unusual feature of this case. The appellant was sentenced to four years' imprisonment and a non-parole period of 18 months was fixed.

As his Honour rightly said in his very careful and thorough sentencing remarks, the circumstances surrounding the offence were very serious.

The victim was aged 22 years at the time of the rape. She had known the appellant from teenage years. They commenced a relationship some 12 to 14 months prior to the offence. The appellant had his own key to the flat where the complainant lived with her small child and he regularly stayed there overnight, perhaps three or four nights a week. In about September 2002 he moved into the flat on a permanent basis. In December 2002 the appellant asked the complainant to marry him and she agreed.

After commencing to live together, numerous arguments occurred between the couple, the appellant's jealousy being a major factor. In January 2003 the complainant became pregnant and she told the appellant that she wanted time to herself and asked him to move out of the house. He refused to do so and she obtained an intervention order which forced him to leave. After he had left, she terminated the pregnancy, obtaining funds for that procedure by pawning her engagement ring.

Notwithstanding the terms of the intervention order, the complainant maintained telephone contact with the appellant, and he told police that he was frequently invited to come to the flat. On some occasions he had sexual intercourse with the complainant.

In March 2003 the complainant phoned the appellant at work to announce…

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 Rowley

Details

AGLC: R v Rowley [2007] VSCA 94
Case: [2007] VSCA 94
Decision Date: 11 May 2007

CaseChat Overview and Summary

The appellant, Rowley, appealed against the sentence imposed following his guilty plea to rape. The case was heard in the Court of Appeal. The primary dispute was the appropriateness of the sentence given the circumstances of the case, particularly the delay in sentencing, the appellant’s intellectual disability, and the fact that the victim declined to provide a victim impact statement.

The legal issues before the court were whether the delay in sentencing was so exceptional as to warrant a reduction in sentence, the relevance of the absence of fault on the part of the prosecutor, and the appropriate weight to give to the appellant’s intellectual disability and the post-offence relationship with the victim. The court also considered the relevance of the victim declining to provide a victim impact statement.

The Court of Appeal held that the delay in sentencing was indeed exceptional, and while the absence of fault on the part of the prosecutor was not relevant to the effect of delay, the rehabilitation of the offender and his relationship with the victim were relevant. The court held that the intellectual disability of the appellant was a significant mitigating factor, as was the victim’s decision not to provide a victim impact statement. The court found that the original sentence was excessive and allowed the appeal, reducing the sentence to three years’ imprisonment with a non-parole period of 12 months.

Orders