SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0181
| DAVID ROPER |
| v |
| 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…
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- AGLC
- Roper v The Queen [2016] VSCA 52
- Case
- [2016] VSCA 52
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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