Samuels v The Queen

[2019] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0122
HAYDEN SAMUELS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2019
DATE OF JUDGMENT:	8 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 14
JUDGMENT APPEALED FROM:	[2018] VCC 781 (Judge Tinney)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Rape (2 charges) and making threat to kill – Pleas of not guilty – Total effective sentence of 10 years and 6 months, with non-parole period of 7 years and 9 months – Whether sentence manifestly excessive – Manifest excess not reasonably arguable – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Thexton Lawyers
For the Respondent	Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
WEINBERG JA:

1. On 9 March 2018, following a trial in the County Court, the applicant was found guilty of two charges of rape and one charge of making a threat to kill.  The charges of rape involved penile/anal penetration, and the victim of all three offences was the applicant’s wife of many years.

1. On 30 May 2018, the applicant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
3	Rape [Crimes Act 1958 s 38]	25 years	8 years	Base
4	Rape [Crimes Act 1958 s 38]	25 years	8 years	2 years
5	Make a threat to kill [Crimes Act 1958 s 20]	10 years	2 years	18 months concurrent
Total Effective Sentence:   10 years 6 months
Non-Parole Period:   7 years 9 months
Pre-Sentence Detention Declaration:      82 days
Other relevant orders:  Applicant sentenced as a serious sexual offender in respect of charge 5.

1. On 1 October 2018, a judge of this Court (Tate JA) refused the applicant’s application for leave to appeal holding, contrary to the applicant’s contention, that it was not reasonably arguable that the sentence imposed on him was manifestly excessive.[2]

   [2]Samuels v The Queen [2018] VSCA 251 (‘Reasons of Tate JA’).

1. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application for leave to appeal, contending again that the sentence imposed on him was manifestly excessive. 

1. As her reasons disclose, Tate JA gave detailed consideration to the circumstances of the applicant’s offending, relevant matters in mitigation and arguments made by the applicant in support of his contention that the sentence imposed upon him was manifestly excessive.  We have now reviewed all of these matters afresh for ourselves.  Having done so, and also having heard argument this morning, we have come to the conclusion that, for the reasons given by Tate JA, the applicant’s complaints of manifest excess are not reasonably arguable.[3]

   [3]Reasons of Tate JA [35]–[48].

1. As we have observed, Tate JA’s reasons describe, in significant detail, the applicant’s offending, the sentencing judge’s reasons, the applicant’s arguments and why leave to appeal should be refused.  There is no reason why we should repeat any of these matters.  While agreeing with Tate JA, we would respectfully wish, however, to express our disagreement with one aspect of her Honour’s conclusions.

1. In her reasons for refusing leave, Tate JA refers to the sentences imposed on the applicant in respect of the rape charges as being ‘very stern’. We do not agree with that characterisation. In our view, having regard to the objective gravity of the applicant’s offending,[4] and the fact that the sentences were imposed following a trial, the sentences imposed by the judge were well open.

   [4]For a full description of the circumstances of the offending, see Reasons of Tate JA [4]-[15].

1. For these reasons, the application for leave to appeal must be refused.

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