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Roberts v The Queen

Roberts v The Queen

Case [2012] VSCA 313 17 December 2012

Admissibility of Evidence

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2011 0240

PETER CHARLES ROBERTS	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NETTLE, TATE JJA and FERGUSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 October 2012
DATE OF JUDGMENT	17 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 313
JUDGMENT APPEALED FROM	DPP v Roberts (Unreported, County Court of Victoria, Judge Wischusen, 16 January 2012)

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CRIMINAL LAW – Appeal against conviction – Rape and false imprisonment – Whether verdicts unsafe and unsatisfactory – Challenge to credibility of complainant – Verdict open to jury on evidence – M v The Queen (1994) 181 CLR 487, applied.

CRIMINAL LAW – Whether judge erred in refusing to allow cross-examination of the complainant about her prior sexual abuse – Whether proper and rigorous evidentiary foundation for application for leave to cross-examine – R v ERJ (2010) A Crim R 270, applied – Criminal Procedure Act 2009, ss 338, 342, 349.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Totality –Indeterminate life sentence for previous offence – Obligation of sentencing judge to fix sentence reflective of criminal culpability involved in particular offending – Effect of Sentencing Act 1991, s 5(2AA) – R v Hunter (2006) 14 VR 336, considered – Pre-sentence detention – R v Renzella [1997] 2 VR 88, Karpinski v R (2011) 32 VR 85, considered – non-parole period set at high proportion of head sentence – Kumova v R [2012] VSCA 212, considered – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson
For the Crown	Mr T Gyorffy SC with Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I agree with Tate JA.

TATE JA:

Introduction

The appellant, Peter Charles Roberts, appeals against his conviction for rape and false imprisonment on two grounds: (1) the verdicts were unsafe and unsatisfactory and (2) the judge erred in refusing to allow cross-examination of the complainant in relation to her prior sexual abuse.

He was acquitted of Charge 2 on the indictment, common assault.[1]
[1]The appellant withdrew a third ground of appeal, namely, that the guilty verdicts on Charges 1 and 3 were unreasonable and inconsistent with the verdict of not guilty on Charge 2.

The appellant also appeals against the sentence imposed on him.[2] He was sentenced in the County Court as follows:
[2]He was sentenced on 2 September 2011: The Queen v Peter Roberts (Unreported, County Court of Victoria, Judge Wischusen) ‘Sentencing remarks’. Leave to appeal against conviction and sentence was granted by Maxwell P on 29 May 2012.

Charge on Indictment Offence Maximum Sentence Cumulation

1 False imprisonment
[common law]
10 years’ imprisonment

[Crimes Act 1958
s 320]
18 months’ imprisonment 6 months

3 Rape
[Crimes Act 1958 (Vic) s 38(1)]
25 years’ imprisonment

[Crimes Act s 38(1)]
9 years’ imprisonment Base sentence

Total Effective Sentence: 9 years 6 months’ imprisonment

Non-Parole Period: 8 years

Pre-sentence Detention Declared: 974…

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 Roberts v The Queen

Details

AGLC: Roberts v The Queen [2012] VSCA 313
Case: [2012] VSCA 313
Decision Date: 17 December 2012

CaseChat Overview and Summary

The appellant, Roberts, was convicted of rape and false imprisonment and sought to appeal his conviction and sentence. The appeal was heard by the Court of Appeal in Victoria. Roberts contended that the verdict was unsafe and unsatisfactory due to the credibility of the complainant and that the trial judge erred by refusing to allow cross-examination about her prior sexual abuse. The appeal against sentence argued that the sentence was manifestly excessive and did not take into account the totality of the offending.

The court considered whether the verdict was open to the jury on the evidence presented and whether the trial judge erred in refusing to allow cross-examination about the complainant's prior sexual abuse. The court found that the verdict was open to the jury and that the trial judge had not erred in refusing leave to cross-examine about the complainant's prior sexual abuse. The court held that the judge had followed the correct legal principles in determining whether to grant leave to cross-examine. The court also considered the appeal against sentence and found that the sentence was not manifestly excessive and took into account the totality of the offending.

The court dismissed the appeal against conviction, finding that the verdict was open to the jury on the evidence presented. The court also dismissed the appeal against sentence, finding that the sentence was not manifestly excessive and took into account the totality of the offending. The court found that the trial judge had exercised his discretion appropriately in setting the non-parole period at a high proportion of the head sentence.

The final orders of the court were that the appeal against conviction and sentence were dismissed. The conviction and sentence of the appellant remained in place. The court did not make any orders regarding the appellant's bail or any other matters.

Orders