[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	TATE, WHELAN JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2017
DATE OF JUDGMENT:	11 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 288
JUDGMENT APPEALED FROM:	DPP v [Robbins] (Unreported, County Court of Victoria, Judge Ryan, 6 May 2016 (Conviction), 26 August 2016 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 (six counts) – Attempted sexual penetration of child under 16 (two counts) – Verdicts properly open to jury – No substantial miscarriage of justice - Leave to appeal granted – Appeal dismissed – Criminal Procedure Act 2009 (Vic) ss 276(1)(a) and 276(1)(c).

CRIMINAL LAW – Appeal – Conviction – Evidence – Jury directions – Delay in complaint – Whether trial judge erred in refusing application for forensic disadvantage direction – Loss of chance to obtain forensic evidence – Loss of chance to explore circumstances of offending – Whether ‘significant forensic disadvantage’ – Leave to appeal granted – Appeal dismissed – Longman v The Queen (1989) 168 CLR 79; PT v The Queen [2011] VSCA 43; Mulligan (a Pseudonym) v The Queen [2017] VSCA 94 discussed – Greensill v The Queen (2012) 37 VR 257; Jurj v The Queen [2016] VSCA 57; Pate (a Pseudonym) v The Queen (2015) 250 A Crim R 425 distinguished – Jury Directions Act 2015 (Vic) s 39 – Criminal Procedure Act 2009 (Vic) s 276(1)(b).

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (six counts) – Attempted sexual penetration of child under 16 (two counts) – Total effective sentence nine years’ imprisonment – Non-parole period of six years – Whether manifestly excessive –Exceptional circumstances found – Sentences not manifestly excessive – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (six counts) – Attempted sexual penetration of child under 16 (two counts) – Total effective sentence nine years’ imprisonment – Non-parole period of six years – Whether trial judge erred in approach to sentencing for multiple offences – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Melasecca, Kelly & Zayler
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

TATE JA

WHELAN JA
MACAULAY AJA:

In 2016 the applicant was tried in the County Court on 12 charges of taking part in an act of sexual penetration of a child under the age of 16 in his care, supervision or authority, and two charges of attempting the same offence.

The complainant in relation to all the charges was a member of the applicant’s extended family. The applicant and the complainant are of middle…

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 Robbins (a pseudonym) v The Queen

Details

AGLC: Clinton Robbins (a pseudonym)[1] v The Queen [2017] VSCA 288
Case: [2017] VSCA 288
Decision Date: 11 October 2017

CaseChat Overview and Summary

Robbins (a pseudonym) appealed against his conviction and sentence for six counts of sexual penetration of a child under 16 and two counts of attempted sexual penetration of a child under 16. The case was heard in the Victorian Court of Appeal. The primary issue was whether the trial judge had erred in not directing the jury on the concept of forensic disadvantage due to a delay in the victim's complaint, and if the sentences imposed were manifestly excessive. The court also considered whether the trial judge had erred in their approach to sentencing for multiple offences.

The Court of Appeal found that the trial judge had not erred in declining to give a forensic disadvantage direction to the jury. The delay in the victim's complaint did not result in a significant forensic disadvantage. The court held that the jury was properly directed and that the loss of chance to obtain forensic evidence or explore the circumstances of the offending did not warrant a direction to the jury. The court found no substantial miscarriage of justice and dismissed the appeal. The reasoning was consistent with precedents such as Longman v The Queen and Mulligan (a Pseudonym) v The Queen, distinguishing it from cases like Greensill v The Queen and Jurj v The Queen.

The court also examined the sentences imposed, which amounted to a total effective sentence of nine years' imprisonment with a non-parole period of six years. The appeal against the sentences was dismissed as they were not manifestly excessive. The court found that the trial judge had properly considered exceptional circumstances and that the sentences were appropriate. The Court of Appeal found no error in the trial judge's approach to sentencing for multiple offences. The appeal against the sentence was dismissed.

Orders