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R v Spero

R v Spero

Case [2006] VSCA 58 17 March 2006

Criminal Liability

Evidence Law

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 369 of 2004

THE QUEEN
	v
WILLIAM SPERO

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JUDGES:	MAXWELL, P, BUCHANAN, JA and REDLICH, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2006
DATE OF JUDGMENT:	17 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 58

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Criminal law – Conviction – Lies and consciousness of guilt – Other reasons to lie – Edwards direction – Use of model charge from Charge Book.

Recognition cases – Whether identification or recognition case – Domican warning – Whether trial judge obliged to warn jury about unreliability of recognition evidence – Circumstantial evidence supporting direct identification evidence.

Aggravated burglary – Whether applicant entered as trespasser – Necessary intent as trespasser – No issue as to permission to enter or intent – Directions unnecessary.

Sentence – Double punishment – Manifest excess – Offender re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Pullen SC	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

MAXWELL, P:

I have had the advantage of reading in draft the reasons for judgment of Redlich, AJA. I agree that, for the reasons given by his Honour, the application for leave to appeal against conviction should be refused, the application for leave to appeal against sentence granted, the appeal treated as having been heard instanter and allowed, and the applicant re-sentenced as his Honour proposes.

BUCHANAN, JA:

I agree with Redlich, AJA, for the reasons he has stated, that the application for leave to appeal against conviction should be refused, the application for leave to appeal against sentence granted, the appeal heard instanter and allowed and the applicant re-sentenced as his Honour proposes.

REDLICH, AJA:

On 16 September 2004 the applicant, William James Spero, who was aged 45 years at the time of the offending, was found guilty by a jury of one count of aggravated burglary, two counts of indecent assault, one count of rape and one count of causing injury recklessly. Following a plea in mitigation of penalty the applicant was sentenced to a term of five years’ imprisonment on the count of aggravated burglary, four years’ imprisonment on the count of rape, 18 months’ imprisonment on the count of recklessly causing injury, eight months’ imprisonment on the first count of indecent assault and 12 months’ imprisonment on the second count of indecent assault. The trial judge ordered that two years of the sentence imposed on the count of rape and six months of the sentence imposed on the count of recklessly causing injury be served cumulatively on the sentence imposed on the count of aggravated burglary, making a total effective sentence of seven years and six months. His Honour fixed a minimum period of five years before the applicant was to become eligible for parole. The applicant appeals against both his conviction and sentence.

I turn firstly to a brief summary of the circumstances of the applicant’s offending. The complainant was a 69 year old woman who…

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 Spero

Details

AGLC: R v Spero [2006] VSCA 58
Case: [2006] VSCA 58
Decision Date: 17 March 2006

CaseChat Overview and Summary

In the case of R v Spero, the applicant was convicted of aggravated burglary, and the matter was heard in the Supreme Court of Victoria. The applicant contested the conviction on several grounds, including the sufficiency of the evidence, the adequacy of the trial judge's directions to the jury, and the severity of the sentence imposed. The appeal centred on the reliability of the evidence that led to the applicant's conviction, particularly the identification evidence provided by the complainant, and the application of sentencing principles.

The court was required to determine whether the trial judge correctly identified the case as one of recognition rather than identification, and whether the judge should have provided a Domican warning to the jury regarding the unreliability of recognition evidence. The applicant argued that the trial judge erred by not issuing such a warning, as there was circumstantial evidence that supported the complainant's recognition evidence. Additionally, the court had to assess the adequacy of the Edwards direction provided to the jury regarding the credibility of the evidence, particularly in relation to the applicant's lies and potential consciousness of guilt.

The court found that the trial judge correctly identified the case as one of recognition and did not err in not providing a Domican warning, as the evidence presented was sufficient to support the conviction. The court held that the judge's directions to the jury, including the Edwards direction, were adequate and appropriately balanced the recognition evidence with the other evidence presented. Furthermore, the court concluded that the sentence imposed was manifestly excessive, and the applicant was re-sentenced to a term that was deemed appropriate. The appeal was ultimately dismissed, and the conviction and sentence were upheld.

Orders