Saenz v The Queen - [2011] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0808

ENRIQUE SAENZ

THE QUEEN

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JUDGES:	BUCHANAN and NEAVE JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2011
DATE OF JUDGMENT:	25 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 154
JUDGMENT APPEALED FROM:	R v Saenz (Unreported, County Court of Victoria, Judge Gamble, 28 August 2009)

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CRIMINAL LAW – Attempted kidnapping – Evidence of complainant given by VATE tape – Attempted kidnapping in this case involved an assault or injury or threat of injury – Verdict not unsafe or unsatisfactory – Jury entitled to accept the account of the complainant.

CRIMINAL LAW – Sentence – Attempted kidnapping – Judge not required to consider the maximum sentence for child stealing – Rehabilitation – No discernable motive for offence.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Theo Magazis & Assoc
For the Respondent	Mr D A Trapnell SC with Ms K Argiropoulos	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

After a trial in the County Court a jury found the applicant guilty on one count of attempted kidnapping. A plea was conducted and the applicant was sentenced to be imprisoned for a term of six years. A minimum term of three years’ and nine months’ imprisonment was fixed before the applicant was to be eligible for parole.

The applicant seeks leave to appeal against his conviction and sentence.

The principal Crown witness was the victim of the offence, a 14 year old girl.

When the girl was being driven home from school by her mother, a quarrel developed and the mother dropped off her daughter to walk a short distance home. Instead of walking directly to her house, the girl decided to walk to a park near the house.

As the girl walked along a road out of the park, she saw the applicant driving his car in the opposite direction as he entered the park. A short time later the girl noticed the applicant drive past her again, this time heading out of the park. The applicant stopped his car a short distance past the girl and pretended to be concerned about one of the tyres on his car. Her suspicions were aroused and she took a wide berth around the car.

The applicant began following the girl on foot. As she turned to look behind her, the applicant grabbed hold of her arm and tried to persuade her to return to his car, pretending to show her something. The girl said, amongst other things, ‘No thank you I would just like to walk home.’

Despite her protests, the applicant tightened his grip on the girl’s arm and attempted to forcefully take her to his car by turning her around to face him and then walking backwards with her towards his car, saying, ‘Come into my car’. The girl responded by physically pushing the applicant and pulling herself away. The applicant loosened his grip and the girl was able…

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 Saenz v The Queen

Details

AGLC: Saenz v The Queen [2011] VSCA 154
Case: [2011] VSCA 154
Decision Date: 25 May 2011

CaseChat Overview and Summary

Saenz was charged with attempted kidnapping and faced trial in the Supreme Court. The complainant in the case was unable to testify in person due to health reasons, and her evidence was provided via a videotaped appearance from a hospital. The crux of the dispute was whether the jury was entitled to rely on this evidence and whether the verdict of guilt was safe and satisfactory.

The legal issues at hand were whether the complainant's videotaped evidence was admissible and reliable, and if the jury's verdict, based on that evidence, was sound. Furthermore, the court needed to consider the appropriate sentence for the offence of attempted kidnapping, including whether the maximum penalty should be considered and the role of rehabilitation in sentencing.

The court concluded that the complainant's videotaped evidence was both admissible and reliable, and the jury was entitled to accept it. The verdict was deemed safe and satisfactory, as the evidence supported the conclusion that the accused had attempted to kidnap the complainant, which involved an assault, injury, or a threat of injury. In terms of sentencing, the court noted that while the maximum penalty for child stealing should not be automatically considered, rehabilitation was an important factor. Given the lack of a discernible motive for the offence, the court imposed a sentence that balanced the need for punishment with the potential for rehabilitation.

Orders