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R v Scott

R v Scott

Case [2009] VSCA 20 2 March 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 55 of 2008

THE QUEEN
	v
WAYNE ARTHUR SCOTT

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JUDGES:	NEAVE and REDLICH JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2008
DATE OF JUDGMENT:	2 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 20	1^st Revision 10 March 2009, n3

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CRIMINAL LAW – Application for leave to appeal – Conviction – Applicant charged with two counts of wilfully committing an indecent act with a child under the age of 16 – Applicant acquitted on one count and convicted on the other count – ‘Oath against oath’ case – Inconsistency between complainants evidence at committal and at trial – Whether complainant’s credit ‘indivisible’ – Whether verdicts inconsistent – Whether verdicts unsafe and unsatisfactory or unreasonable or not supported by the evidence.

CRIMINAL LAW – Application for leave to appeal – Sentence – Whether sentencing judge took account of previous acquittals when formulating sentence – Whether applicant’s conduct improperly described by sentencing judge as ‘predatory’ – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P G Priest QC with Mr S K Gardner	McGuinness & Hosking Pty

NEAVE JA:

The applicant, Wayne Arthur Scott, was charged with three counts of wilfully committing an indecent act with, or in the presence of, a child under the age of 16. Count 1 related to the complainant KA, and counts 2 and 3 to the complainant TK. The applicant was acquitted by a jury of counts 1 and 2 and convicted of count 3.

Counts 2 and 3 were alleged to have occurred at the 16^th birthday party of TK’s sister, TA, which was held at their parents’ home and attended by about 50 young people and adults. The complainant said that the applicant rubbed her breast (count 2) and put his hands down her pants onto her pubic region and rubbed her there (count 3). At the time of the alleged offences the complainant was aged 14 and the applicant was 39.

After hearing a plea in mitigation of sentence, the learned trial judge sentenced the applicant to 15 months’ imprisonment, with a non-parole period of six months. As a consequence of his conviction, the applicant became a registrable sex offender who has annual reporting obligations imposed on him for eight years. He now seeks leave to appeal against his conviction and sentence.

The appeal against conviction
The Crown and defence cases

The Crown case was that count 2 occurred after the complainant went into the house from the back garden to change out of her bathers. The applicant had hugged the complainant and touched her breast in a corridor outside her bedroom, which ran off the living room of the house. Count 3 was said to have occurred after the applicant followed TK into her bedroom and touched her pubic area. Immediately after these events occurred, TK complained to…

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 Scott

Details

AGLC: R v Scott [2009] VSCA 20
Case: [2009] VSCA 20
Decision Date: 2 March 2009

CaseChat Overview and Summary

In the case of R v Scott, the applicant appealed against both his conviction and sentence. The applicant was charged with two counts of committing an indecent act with a child under the age of 16. He was acquitted on one count and convicted on the other. The case presented a situation where the evidence from the complainants was inconsistent between the committal and trial stages. The primary legal issues before the court were whether the credit given to the complainants was indivisible, whether the verdicts were inconsistent, and whether the verdicts were unsafe and unsatisfactory, unreasonable, or not supported by the evidence. Additionally, the court considered whether the sentencing judge had taken into account the previous acquittals when formulating the sentence, and whether the applicant's conduct was improperly described as 'predatory' by the sentencing judge. The court also examined whether the sentence was manifestly excessive.

The court examined the inconsistencies in the complainants' testimonies and determined that their credit was not indivisible. This meant that the court could assess the credibility of each complainant independently. The court found that the verdicts were not inconsistent and were supported by the evidence presented. Regarding the sentence, the court found that the sentencing judge had not taken into account the previous acquittals when formulating the sentence. However, the court concluded that the sentence was not manifestly excessive despite the sentencing judge's description of the applicant's conduct as 'predatory'.

The applicant's application for leave to appeal was dismissed. The court found that the verdicts were safe and satisfactory, and the sentence was not manifestly excessive. Therefore, the conviction and sentence remained in place. The court did not find any grounds for allowing the appeal, and the applicant's appeal was dismissed in its entirety.

Orders