R v Verde - [2009] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 339 of 2007

THE QUEEN
	v
STEVE VERDE

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JUDGES:	VINCENT and NETTLE JJA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2009
DATE OF JUDGMENT:	18 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 16	1st revision 27 Feb 2009 [2]

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CRIMINAL LAW – Conviction – Burglary – Intention to assault – Whether open to infer existence of intention in absence of direct evidence – Whether conditional intention sufficient – Whether judge erred in refusing to direct an acquittal – Reg v Walkington [1979] 1 WLR 1169, Re Attorney - General’s Reference (Nos 1 and 2 of 1979) [1980] 1 QB 180 considered, Doney v The Queen (1990) 171 CLR 207 applied – Appeal dismissed.

CRIMINAL LAW – Sentencing – Manifest excessiveness – Applicant sentenced to a term of imprisonment of four years and seven months’ with a non-parole period of two years and six months – Very low IQ, borderline personality and aboriginality – Whether applicant’s circumstances warranted further leniency – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan S.C.	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr J R Sutton	Rainer Martini Solicitors

VINCENT JA:

I invite Nettle JA to deliver the first judgment.

NETTLE JA:

Following a trial in the County Court at Melbourne, on 21 August 2007 the applicant, Steve Verde, was convicted on presentment U00848071 of one count of burglary, two counts of intentionally causing injury, two counts of false imprisonment and one count of rape, and on presentment U01009691, pleaded guilty to one count of threat to kill and one count of intentionally threatening to inflict serious injury. After hearing a plea in mitigation of penalty, on 5 October 2007 the judge sentenced the applicant to a total effective sentence of four years and seven months' imprisonment, with a non-parole period of two years and six months.

The applicant now seeks leave to appeal against both conviction and sentence.

The Crown’s case at trial

The evidence adduced at the trial was that for the five years preceding the commission of the offences, the applicant lived in a de facto relationship with the female complainant, Robyn Phelps, who in that time bore him three children. At the time of the offences, he was 41 years of age and she was 24 and an alcoholic. On 24 February 2006, they separated, and Ms Phelps obtained an interim intervention order which prohibited the applicant from approaching her or the home in which they had lived together at 15 Karoo Road, Rowville. Fearing nonetheless that the applicant might attack her physically, Ms Phelps stayed for some days in a women's refuge, and her children were placed in her parents' custody.

Some time earlier, Ms Phelps had begun a sexual relationship with a neighbour, Darren Houston, who lived at 11 Karoo Road, Rowville, and she spent several nights on the street drinking with him.

At about midday…

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 Verde

Details

AGLC: R v Verde [2009] VSCA 16
Case: [2009] VSCA 16
Decision Date: 18 February 2009

CaseChat Overview and Summary

The defendant, Verde, was convicted of burglary and was subsequently sentenced to four years and seven months’ imprisonment with a non-parole period of two years and six months. Verde appealed both his conviction and his sentence. The appeal was heard in the High Court of Australia.

The legal issues in the case revolved around the sufficiency of the evidence to support Verde’s conviction for burglary, and whether the trial judge erred in not directing an acquittal. Specifically, the question was whether it was open to the jury to infer the existence of an intention to assault when no direct evidence was presented. Additionally, the court considered whether a conditional intention was sufficient to satisfy the mens rea for burglary. The appeal also challenged the appropriateness of the sentence, given Verde’s very low IQ, borderline personality disorder, and Aboriginality.

The court found that there was sufficient evidence for the jury to infer the requisite intention for burglary based on the circumstances and the defendant’s actions. The court rejected Verde’s argument that only direct evidence could support such an inference. Regarding the conditional intention, the court held that a conditional intention was sufficient to meet the mens rea for burglary. The judge did not err in refusing to direct an acquittal. As for the sentence, the court concluded that the trial judge had appropriately considered the defendant’s circumstances, including his very low IQ, borderline personality disorder, and Aboriginality, but ultimately found that the sentence was not manifestly excessive.

The appeal was dismissed, affirming Verde’s conviction and sentence.

Orders