R v Tutchell - [2006] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 364 of 2005
	v
ROBERT JOHN TUTCHELL

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JUDGES:	NETTLE and ASHLEY, JJA and COLDREY, AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	7 September and 15 December 2006
DATE OF JUDGMENT:	19 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 294

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Criminal law – Sentence – Rape – Failure of judge to state factual basis upon which sentence imposed – Sentence shown to have been imposed upon factual basis not supported by jury verdict – Imposition of disproportionate sentence without disclosure of that fact in sentencing remarks – Failure to make necessary findings before disproportionate sentence imposed – Appeal allowed – Disproportionate sentence imposed having regard to findings made by Court of Appeal.

Sentencing Act 1991, s.6D(a) and (b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M P Taft	Robert Davis (Moe)

NETTLE, JA:

I have had the considerable advantage of reading in draft the reasons for judgment of Ashley, JA.

I agree with his Honour that the sentencing judge erred by sentencing the appellant as if he had been found guilty of penile rape which was non-consensual from the outset. On the evidence, it was not open to be satisfied beyond reasonable doubt that the applicant was guilty of anything graver than delaying in withdrawing from the complainant after she had revoked her consent and in my view it is not to be assumed that the jury may have found that the appellant was guilty of anything graver than that.[1]
[1]cf. Ibbs v The Queen (1987) 163 C.L.R. 447 at 452.

I also am of the view that the judge imposed a disproportionate sentence without stating that he was adopting that course and without making the findings required to show that a disproportionate sentence was necessary for the achievement of the protection of the community from the applicant. It is plain that the sentencing discretion miscarried.

I share Ashley, JA’s views as to the nature and gravity of the appellant’s offending and the appellant’s character and antecedents, and his Honour’s conclusion that, giving full weight to s.6D(a) of the Sentencing Act 1991, a sentence proportionate to the offence could not exceed seven or eight years. But I have vacillated as to whether it is necessary to impose a disproportionate sentence for the achievement of community protection from the appellant. Other things being equal, I should have thought that eight years is such a long time in the life of a man – especially one of the appellant’s age – that it could not be said beyond reasonable doubt what the likelihood would be of the appellant re-offending at the end of that time.

In the end, however, I am persuaded by the contents of Dr Senadipathy’s opinion and Dr Sullivan’s pre-sentence report. Dr Senadipathy is in no doubt that the appellant will re-offend. As Ashley, JA observes, Dr Sullivan is slightly…

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 Tutchell

Details

AGLC: Melbourne Cricket Club v Clohesy [2006] VSCA 294
Case: [2006] VSCA 294
Decision Date: 19 December 2006

CaseChat Overview and Summary

The matter of R v Tutchell was heard in the Court of Appeal, where the appellant, Tutchell, contested the sentence imposed for his conviction of rape. The crux of the appeal was the contention that the judge had failed to articulate the factual basis upon which the sentence was imposed. This failure resulted in the sentence being founded on facts not endorsed by the jury's verdict, thereby rendering it disproportionate and unlawful. Tutchell argued that the omission of such crucial information in the sentencing remarks was a significant procedural error that necessitated the court's intervention.

The legal issues at hand required the court to determine whether the judge's failure to specify the factual basis for the sentence constituted a material error warranting an appeal. Specifically, the court needed to assess whether the sentence imposed was disproportionate given the factual findings that were actually made by the jury. The appeal also scrutinized whether the requisite findings were made before the disproportionate sentence was handed down, in line with the provisions of the Sentencing Act 1991, sections 6D(a) and (b).

The Court of Appeal found that the sentence imposed was indeed disproportionate, as it was based on a factual premise not supported by the jury's verdict. The court concluded that the judge's failure to disclose the factual basis for the sentence in the sentencing remarks was a significant procedural misstep. Consequently, the court allowed the appeal and quashed the sentence, mandating a reconsideration of the sentence in light of the correct factual findings. The Court of Appeal's decision underscored the necessity of ensuring that any disproportionate sentence is imposed only after the necessary factual findings are transparently and correctly articulated.

Orders