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Stanford v The King

Stanford v The King

Case [2024] VSCA 35 18 March 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0097

DONALD STANFORD[1]	Applicant
v
THE KING	Respondent

[1]The published sentencing reasons use the pseudonym ‘Hawthorne’, as did documents filed in the appeal. Prior to handing down judgment, the Court was advised by the Director of Public Prosecutions that the victim consents to publication of the judgment without a pseudonym.

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JUDGES:	BOYCE, WHELAN and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2024
DATE OF JUDGMENT:	18 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 35
JUDGMENT APPEALED FROM:	DPP v Hawthorne (a pseudonym) [2022] VCC 2063

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CRIMINAL LAW – Appeal – Conviction – Rape – Initial indictment particularised mode of penetration as vaginal – Indictment amended to particularise mode of penetration as anal – Complainant gave equivocal evidence of mode of penetration being vaginal or anal – Jury directed they could convict if satisfied of either anal or vaginal penetration – Prosecution conceded on appeal that it had disavowed reliance on vaginal penetration – Appeal allowed – Appellant re-sentenced to total effective sentence of 13 years with non-parole period of 9 years and 6 months.

Sentencing Act 1991 ss 6B, 6D, 6E, 16.

DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Lian [2019] VSCA 75; DPP v OJA (2007) 172 A Crim R 181; El-Waly v The Queen (2012) 46 VR 656; Filiz v The Queen [2014] VSCA 212; Knowles (a pseudonym) v The Queen [2015] VSCA 141; Nudd v The Queen (2006) 225 ALR 161; Pasinis v The Queen [2014] VSCA 97; Saab (a pseudonym) v The Queen [2022] VSCA 116; TKWJ v The Queen (2002) 212 CLR 124.

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Counsel
Applicant:		Mr SN Andrianakis
Respondent:		Ms J Warren
Solicitors
Applicant:	Slater and King Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
WHELAN JA

T FORREST JA:

The applicant was charged on indictment with one charge of assault, four charges of making a threat to kill, five charges of rape, one charge of recklessly causing injury, one charge of false imprisonment, and one charge of indecent assault. The offences were alleged to have been committed in the period from May 2002 to May 2004. The complainant in relation to all of the charged offences was the applicant’s then domestic partner.[2]
[2]One of the threat to kill charges alleged a threat made to the complainant to kill another person.
The applicant pleaded not guilty to all of the charges.
On 26 August 2022, a jury in the County Count found the applicant guilty of one of the charges of making a threat to kill (charge 7), three of the charges of rape (charges 9, 12 and 13), the charge of false imprisonment (charge 10), and the charge of indecent assault (charge 11).
The jury acquitted the applicant of the assault charge (charge 1), three of the charges of making a threat to kill (charges 2, 4, and 5), one…

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 Stanford v The King

Details

AGLC: Stanford v The King [2024] VSCA 35
Case: [2024] VSCA 35
Decision Date: 18 March 2024

CaseChat Overview and Summary

In the matter of Stanford v The King, the appellant, Stanford, challenged his conviction and sentence on appeal to the court. The appellant was convicted of rape, with the initial indictment specifying vaginal penetration. The indictment was later amended to include anal penetration as an alternative mode of penetration. The complainant provided ambiguous testimony, suggesting either vaginal or anal penetration. The jury was instructed they could convict if they found either mode of penetration to be true. On appeal, the prosecution conceded it no longer relied on the vaginal penetration charge. The appeal was concerned with the validity of the conviction and the appropriateness of the sentence.

The legal issues before the court were whether the appellant's conviction was valid given the prosecution's concession and whether the sentence was appropriate. The court examined the circumstances under which an appeal against conviction can be upheld and the principles governing the amendment of indictments and the directions given to the jury. The court also considered the overall sentence imposed and whether it was excessive or appropriate in the circumstances.

The court found that the prosecution's concession effectively meant the appellant could not be convicted of the offence as charged. Consequently, the appeal against conviction was allowed. The court also considered the overall sentence imposed and found that it was appropriate in the circumstances, taking into account the nature and circumstances of the offence and the appellant's criminal history. The court re-sentenced the appellant to a total effective sentence of 13 years with a non-parole period of 9 years and 6 months.

The court's final orders were to allow the appeal against conviction, set aside the original conviction, and impose a new sentence of 13 years with a non-parole period of 9 years and 6 months.

Orders