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Roper v The Queen

Roper v The Queen

Case [2016] VSCA 52 23 March 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0181

DAVID ROPER

THE QUEEN

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JUDGES:	WHELAN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2016
DATE OF JUDGMENT:	23 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 52
JUDGMENT APPEALED FROM:	DPP v Roper (Unreported, County Court of Victoria, Judge Patrick, 22 July 2014)

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CRIMINAL LAW – Application to admit new evidence on appeal against sentence – Applicant’s symptoms of bowel condition existing at time of sentence but not brought to attention of sentencing judge – Whether it would make prison more burdensome for applicant – Uncertain diagnosis – New material not sufficiently compelling to demonstrate miscarriage of justice – Application dismissed.

CRIMINAL LAW – Appeal – Sentence – Four charges of sexual penetration with a child under 16 – Whether manifestly excessive – Two victims – Voluntary disclosure – Prosecution for offences against first victim would not have proceeded apart from the disclosure – R v Ellis (1986) NSWLR 603 applied – Sentence not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
COGHLAN JA:

On 22 July 2014 the appellant pleaded guilty to a number of sexual offences. Following a plea on that date, he was sentenced in the County Court as follows:

Charge Offence Maximum Sentence Cumulation

1 Taking part in an act of sexual penetration with a child under 16 (under 10) [Crimes Act 1958 (Vic) s 45(2)(a) (as at 17 October 2001)]
[Representative Charge] 25 years [Crimes Act 1958 s 45(2)(a) (as at 17 October 2001)] 4 years Base

2 Taking part in an act of sexual penetration with a child under 16 (under 10)
[Representative Charge] 25 years 4 years 6 months

3 Taking part in an act of sexual penetration with a child under 16 (under 12) [Crimes Act 1958 (Vic) s 45(2)(a) (as at 1 July 2013)] 25 years [Crimes Act 1958 s 45(2)(a) (as at 1 July 2013)] 3 years 2 years

4 Taking part in an act of sexual penetration with a child under 16 (under 12) 25 years 3 years 6 months

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years’ imprisonment

Pre-sentence Detention Declared: 165 days

6AAA Statement: 9 years and 6 months imprisonment with a non-parole period of 7 years

Other orders: Reporting pursuant to Sex Offenders Registration Act 2004 (Vic) for life

On 11 November 2014, Priest JA granted leave to appeal on the following grounds:

1.The individual sentences, total effective sentence and non-parole period are manifestly excessive in the light of the following matters:
(a) the mental impairment suffered by the appellant;
(b) the fact that the admissions volunteered by the appellant were the only evidence of the most serious offending (charges 1 and 2);
(c) the appellant’s otherwise high level of facilitation of the course of…

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 Roper v The Queen

Details

AGLC: Roper v The Queen [2016] VSCA 52
Case: [2016] VSCA 52
Decision Date: 23 March 2016

CaseChat Overview and Summary

The case of Roper v The Queen involved the appellant, Roper, who was convicted of four charges of sexual penetration with a child under 16 and subsequently appealed against the sentence imposed. The High Court of Australia was tasked with considering two primary issues: the first was whether the appellant’s application to admit new evidence on appeal against his sentence should be allowed, and the second was whether the sentence was manifestly excessive.

In addressing the first issue, the court considered whether the new evidence, which concerned the appellant's symptoms of a bowel condition existing at the time of sentencing but not brought to the attention of the sentencing judge, was sufficiently compelling to demonstrate a miscarriage of justice. The appellant argued that the condition would make prison more burdensome for him. However, the court found that the diagnosis was uncertain and that the new material did not meet the threshold of compelling evidence required to establish a miscarriage of justice. Therefore, the application to admit new evidence was dismissed.

With regard to the second issue, the court examined whether the sentence was manifestly excessive. The appellant had committed offences against two victims, and the court considered the principle articulated in R v Ellis, which states that a sentence will not be regarded as manifestly excessive unless it is palpably beyond the proper exercise of the sentencing court's discretion. The court concluded that the sentence was not manifestly excessive, especially considering the appellant's voluntary disclosure and the fact that the prosecution for offences against the first victim would not have proceeded without this disclosure. Consequently, the appeal against the sentence was dismissed.

Orders