Rolls v The Queen; Sleiman v The Queen - [2011] VSCA 401

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0702

AARON MICKAEL BRUCE ROLLS
	Applicant
v
THE QUEEN	Respondent

S APCR 2009 0715

MIRVAT SLEIMAN
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, WEINBERG AND HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 April 2011
DATE OF JUDGMENT:	1 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 401
JUDGMENT APPEALED FROM	R v Rolls and Sleiman [2009] VSC 243 (Kaye J)

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CRIMINAL LAW – Conviction – Conspiracy to murder – Whether two can conspire to commit an offence where only one is to play any active role – Whether the trial judge erred in directing the jury that they must find both co-accused guilty before they could find either co-accused guilty – Whether adequate instruction to the jury about the admissibility and inadmissibility of evidence against each accused – R v Moran and Mokbel [1999] 2 VR 87 distinguished – Nirta v The Queen (1983) 51 ALR 53 distinguished – R v Anderson [1986] AC 27 and R v Siracusa & ors (1990) 90 Cr App R 340 discussed – The Queen v Darby (1982) 148 CLR 668 distinguished – Crimes Act 1958, s 321(1) – Applications for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – Rolls sentenced to 11 years’ imprisonment with a non-parole period of 8 years – Sleiman sentenced to 9 years’ imprisonment with a non-parole period of 6 years – Whether sentences manifestly excessive – Absence of any current sentencing practices in relation to conspiracy to murder against which to determine an appropriate sentencing range – Whether sentencing judge had sufficient regard to Sleiman’s mental health – Whether sentencing judge erred in failing to impose sufficiently disparate sentences on the co-offenders – Applications for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Rolls	Mr C Boyce and Mr J McLoughlin	Victoria Legal Aid
For the Applicant Sleiman	Mr J Dickinson SC	Melasecca Kelly & Zayler
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Harper JA and the additional reasons of Weinberg JA. For the reasons their Honours give, I too would refuse each application.

WEINBERG JA:

I have had the considerable advantage of reading in draft the reasons for judgment prepared by Harper JA. I agree, for the reasons given, that each application for leave to appeal against conviction and sentence should be refused. I wish, however, to add some brief comments of my own.

The offence of conspiracy has existed, in one form or another, for more than 700 years. It may originally have been a statutory offence,[1] though some scholars consider that its non-statutory origins pre-date even the 13^th Century.[2] By the early 17^th Century, an offence of conspiracy had also come to be recognised as an indictable misdemeanour at common law.[3]
[1]Ordinance of Conspirators 1305…

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.

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Details

Case: [2011] VSCA 401
Decision Date: 1 December 2011

CaseChat Overview and Summary

The High Court of Australia recently heard two appeals concerning the convictions and sentences of Rolls and Sleiman for conspiracy to murder. The dispute involved whether the trial judge correctly instructed the jury on the requirements for finding both co-accused guilty of the conspiracy. The court also had to consider whether the jury was adequately informed about the admissibility of evidence in relation to each accused. The High Court examined previous cases, including R v Moran and Mokbel, Nirta v The Queen, R v Anderson, and R v Siracusa & ors, to determine the correct legal principles applicable to conspiracy charges involving multiple conspirators.

The central legal issues were whether the trial judge's instructions to the jury were accurate and whether the jury was properly guided on the admissibility of evidence. The court had to clarify whether it is possible for a conspiracy to be established even if only one conspirator is actively involved. Additionally, the court examined whether the jury should be directed to find both co-accused guilty before finding either guilty. The High Court also scrutinised the sentencing process, considering whether the sentences imposed were manifestly excessive and whether the sentencing judge appropriately considered the mental health of one of the accused.

In delivering the judgment, the court determined that the trial judge correctly instructed the jury on the necessary elements of conspiracy, distinguishing between the cases cited. The court found that the jury was adequately informed about the admissibility and inadmissibility of evidence against each accused. Regarding sentencing, the court held that the sentences were not manifestly excessive, noting the absence of specific sentencing guidelines for conspiracy to murder. The court found no error in the sentencing judge's consideration of Sleiman's mental health and concluded that the disparity in sentences was appropriate.

The court dismissed the applications for leave to appeal both the convictions and the sentences. The findings affirmed the trial judge's approach to instructing the jury and the sentencing considerations, upholding the convictions and sentences of both Rolls and Sleiman.

Orders