JUDGES	MAXWELL P, BUCHANAN and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 January 2011
DATE OF JUDGMENT	20 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 113
JUDGMENT APPEALED FROM	R v Tognolini (Unreported, County Court of Victoria, Judge Sexton, Date of verdict: 17 November 2008; Date of Sentence: 5 March 2009)

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CRIMINAL LAW – Appeal – Conviction – Maintaining sexual relationship with child under 16 – Proof that sexual offence committed on three separate ‘occasions’ – Whether sufficient to prove three acts committed in one episode – Need for clear separation in time or circumstance – Evidence not capable in law of supporting charge – Applicant convicted of alternative count of indecent act – Whether alternative count open – Whether acquittal on one alternative count inconsistent with conviction on another – Conviction upheld – Crimes Act 1958 (Vic) s 47A(1), (5).

CRIMINAL LAW – Appeal – Conviction – Attempting to pervert the course of justice – Whether conduct directed at police investigation capable of constituting offence – Conviction upheld.

CRIMINAL LAW – Appeal – Sentence – Attempting to pervert the course of justice – Sentence of six years’ imprisonment – Consideration of current sentencing practices – Sentence outside the range – Resentenced to four years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P G Priest QC with Mr T Kassimatis	Galbally Rolfe
For the Crown	Mr O P Holdenson QC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA
REDLICH JA:

Summary

This case raises an important question about the scope of the offence created by s 47A of the Crimes Act 1958 (Vic) (‘Crimes Act’).[1] At the relevant time, the offence was known as ‘maintaining a sexual relationship with a child under the age of 16’. Following an amendment in 2006,[2] the offence is now known as ‘persistent sexual abuse of a child under the age of 16’. The elements of the offence are unchanged.
[1]As counsel noted at the commencement of argument, the same question of the scope of s 47A had arisen in a different criminal trial and the judge had reserved the question for consideration by this Court, pursuant to s 302 of the Criminal Procedure Act 2009. The disposition of the stated case was deferred, to await the outcome of this appeal.
[2]See Crimes (Sexual Offences) Act 2006, s 11.

The applicant was charged with an offence under s 47A. As this Court explained in R v SLJ:[3]

To prove the offence, the prosecution was required by s 47A(2) to establish that, on three separate “occasions” during a particular period and while the child was under the age of 16 years, the accused “did an act in relation to the child which would constitute an offence” against certain provisions of the Act. The relevant offences included sexual penetration of a child under 16…

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 Tognolini v The Queen

Details

AGLC: Tognolini v The Queen [2011] VSCA 113
Case: [2011] VSCA 113
Decision Date: 20 April 2011

CaseChat Overview and Summary

In the case of Tognolini v The Queen, the applicant, Tognolini, appealed against his conviction and sentence for maintaining a sexual relationship with a child under 16 and attempting to pervert the course of justice. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. Tognolini was convicted of maintaining a sexual relationship with a child under 16 on the basis that he had engaged in sexual activity with the child on three separate occasions. He was also convicted of attempting to pervert the course of justice by threatening the child to prevent her from testifying against him.

The primary legal issues that the court had to decide were whether the evidence was sufficient to support a conviction for the sexual offence on three separate occasions, whether the alternative count of an indecent act was open, and whether the conviction on the alternative count was inconsistent with the acquittal on one alternative count. Additionally, the court had to determine whether Tognolini's conduct in threatening the child constituted an attempt to pervert the course of justice and whether the sentence imposed was appropriate.

The court held that the evidence was capable of supporting the conviction for the sexual offence on three separate occasions, as the sexual activity occurred on different days and did not form part of a single continuous act. The court also found that the alternative count of an indecent act was open and that the acquittal on one alternative count did not make the conviction on another count inconsistent. Regarding the charge of attempting to pervert the course of justice, the court held that Tognolini's conduct in threatening the child was capable of constituting the offence. However, the court found that the sentence of six years' imprisonment was outside the range of current sentencing practices and resentenced Tognolini to four years' imprisonment.

The court upheld Tognolini's conviction for maintaining a sexual relationship with a child under 16, but reduced his sentence for attempting to pervert the course of justice. The conviction and sentence for the sexual offence were upheld, and the sentence for the attempt to pervert the course of justice was reduced to four years' imprisonment.

Orders