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Stamper (a pseudonym) v The Queen

Stamper (a pseudonym) v The Queen

Case [2021] VSCA 323 24 November 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0093

REED STAMPER (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 applicant’s name.

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JUDGE:	McLEISH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 323
JUDGMENT APPEALED FROM:	[2021] VCC 770 (Judge Higham)

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CRIMINAL LAW – Leave to appeal – Sentence – Two charges of rape – One charge of kidnapping – One charge of making threat to kill – Two charges of theft – One charge of making a threat to inflict a serious injury – Related summary offence – Whether judge failed to adequately account for principle of commonality – Whether orders for cumulation on kidnapping charge and second rape charge manifestly excessive – Leave to appeal refused.

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Written Submissions:	Counsel	Solicitors
For the Applicant	Mr M Reardon	Victoria Legal Aid
For the Respondent	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA:

On 9 April 2021, the applicant pleaded guilty, before a judge of the County Court, to:

(a) two charges of rape;[2]
[2]Crimes Act 1958 s 38(1).

(b) one charge of kidnapping;[3]
[3]Contrary to the common law.

(c) one charge of making a threat to kill;[4]
[4]Crimes Act s 20.

(d) two charges of theft;[5]

(e) one charge of making a threat to inflict a serious injury;[6] and

(f) three related summary offences.[7]

[5]Ibid s 74(1).

[6]Ibid s 21.

[7]Unlawful assault with a weapon (Summary Offences Act 1966 s 23), driving while authorisation suspended (Road Safety Act 1986 s 30(1)) and using an unregistered motor vehicle on a highway (Road Safety Act s 7(1)).

On 11 June 2021, the judge sentenced him as follows:[8]
[8]DPP v Stamper (a pseudonym) [2021] VCC 770 (‘Sentencing Remarks’).

Charge on indictment K12145428.1

Offence

Maximum

Sentence

Cumulation

1

Kidnapping

25 years

2 years and 9 months

1 year and 2 months

2

Making a threat to kill

10 years

1 years and 4 months

Nil

3

Making a threat to inflict a serious injury

5 years

9 months

Nil

4

Theft

10 years

2 months

Nil

5

Rape

25 years

6 years and 3 months

Base

6

Rape

25 years

6 years and 2 months

2 years and 3 months

7

Theft

10 years

1 month

Nil

Related summary offences

Charge 7

Unlawful assault with a weapon

2 years

3 months

Nil

Charge 10

Driving while authorisation suspended

2 years

1 month

Nil

Charge 11

Using an unregistered motor vehicle on a highway

25 penalty units

Convicted and discharged

–

Total effective sentence:

9 years and 8 months

Non-parole period:

6 years

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

309 days

6AAA statement:

12 years and 10 months’ imprisonment with a…

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 Stamper (a pseudonym) v The Queen

Details

AGLC: Stamper (a pseudonym) v The Queen [2021] VSCA 323
Case: [2021] VSCA 323
Decision Date: 24 November 2021

CaseChat Overview and Summary

The defendant, referred to as Stamper, appealed against his sentence for a series of serious criminal offences. The case was heard by the High Court of Australia, which was asked to determine whether the trial judge's sentencing was flawed and whether Stamper should be granted leave to appeal. The offences for which Stamper was convicted included two charges of rape, one charge of kidnapping, one charge of making a threat to kill, two charges of theft, one charge of making a threat to inflict a serious injury, and a related summary offence. The appeal was based on the contention that the trial judge had not adequately considered the principle of commonality in sentencing, and that the orders for cumulation on the kidnapping charge and the second rape charge were manifestly excessive.

The primary legal issue before the court was whether the trial judge had failed to properly account for the principle of commonality in sentencing, which requires that related offences be considered together to avoid excessive punishment. The court also had to consider whether the orders for cumulation on the kidnapping charge and the second rape charge were manifestly excessive. This involved an assessment of the severity of the offences and the appropriateness of the cumulative effect of the sentences imposed. The court examined the reasoning of the trial judge and the overall proportionality of the sentence.

The court found that the trial judge had properly considered the principle of commonality and had taken into account the related nature of the offences in the sentencing process. The court held that the orders for cumulation were not manifestly excessive, as the sentences reflected the gravity of the crimes committed. The High Court was satisfied that the trial judge had appropriately balanced the various factors in reaching the overall sentence. Consequently, the appeal was dismissed, and leave to appeal was refused.

No further orders were made beyond the refusal of leave to appeal.

Orders