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Sibanda v The Queen

Sibanda v The Queen

Case [2011] VSCA 285 23 September 2011

Criminal Liability

Appeal

Manifestly Excessive Sentence

Youth

Rehabilitation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0194

DESIRE SIBANDA

THE QUEEN

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JUDGES	NETTLE, NEAVE JJA and SIFRIS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 August 2011
DATE OF JUDGMENT	23 September 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 285
JUDGMENT APPEALED FROM	DPP v Sibanda (Unreported, County Court of Victoria, Judge Mullaly, 7 June 2010)

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CRIMINAL LAW – Rape – Application for leave to appeal against conviction – Complainant gave evidence that she was asleep at time of alleged rape – Applicant gave evidence that complainant was awake and consenting – Crown conceded that trial judge erred in instructing the jury as to belief in consent – Worsnop v The Queen [2010] VSCA 188 – Whether erroneous direction resulted in substantial miscarriage of justice – No substantial miscarriage of justice where belief in consent not part of applicant’s case – Effect of Criminal Procedure Act 2009 (Vic) s 276 – No error in trial judge’s direction about lies, guilty silence and failure to protest innocence – R v Alexander [1994] 2 VR 232 – Application refused.

CRIMINAL LAW – Sentencing – Manifest excessiveness – Whether sentencing judge failed to give appropriate weight to youth and rehabilitation – Whether sentence consistent with current sentencing practices – Sentence of six years’ imprisonment with a minimum term of three years and six months not manifestly excessive.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Galbally & Rolfe
For the Crown	Mr P Kidd	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Sifris AJA and I agree with his Honour, for the reasons he gives, that the applications for leave to appeal against conviction and sentence should be refused.

The only point which ever caused me any concern about either application was the misdirection to the jury that, if they found the applicant believed the complainant was consenting to sexual intercourse, it would still be open to convict him of rape if satisfied that he believed it to be possible the complainant might not be consenting.[1]
[1]Cf Worsnop v R [2010] VSCA 188.

As Sifris AJA demonstrates, however, because the Crown case was that the complainant was asleep and, therefore, could not consent, and the defence case and the applicant’ evidence was unqualifiedly that she was wide awake and spoke her consent, there was never any room for an issue about whether the applicant believed that the complainant might not be consenting. The sole question for the jury was whether the complainant was asleep, as the Crown alleged, or accepted it was reasonably possible that she was awake.

In the result, it would be wholly unrealistic to suppose that the jury may have convicted the applicant on a basis that he believed the complainant was consenting but thought it possible that she might not be.

I wish also particularly to associate myself with his Honour’s conclusion that the test…

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 Sibanda v The Queen

Details

AGLC: Sibanda v The Queen [2011] VSCA 285
Case: [2011] VSCA 285
Decision Date: 23 September 2011

CaseChat Overview and Summary

The Sibanda v The Queen case involves the applicant appealing against his conviction for the offence of rape. The applicant contends that the trial judge's direction to the jury regarding the belief in consent was erroneous. The applicant argues that the error resulted in a substantial miscarriage of justice. The applicant also challenges the sentence imposed on him, arguing that it was manifestly excessive and that the sentencing judge did not give appropriate weight to his youth and potential for rehabilitation.

The legal issues in this case are whether the erroneous direction to the jury regarding belief in consent resulted in a substantial miscarriage of justice and whether the sentence imposed on the applicant was manifestly excessive. The applicant argues that the erroneous direction resulted in a substantial miscarriage of justice, as the belief in consent was not part of his case. Additionally, the applicant argues that the sentence imposed on him was manifestly excessive, and that the sentencing judge failed to give appropriate weight to his youth and potential for rehabilitation.

The court held that the erroneous direction to the jury did not result in a substantial miscarriage of justice, as the belief in consent was not part of the applicant's case. The court further held that the sentence imposed on the applicant was not manifestly excessive, and that the sentencing judge gave appropriate weight to the applicant's youth and potential for rehabilitation. The court held that the sentence was consistent with current sentencing practices.

The court refused the applicant's application for leave to appeal against his conviction and sentence. The court held that the sentence imposed on the applicant was not manifestly excessive and that the sentencing judge gave appropriate weight to the applicant's youth and potential for rehabilitation. The court further held that the erroneous direction to the jury did not result in a substantial miscarriage of justice, as the belief in consent was not part of the applicant's case.

Orders