Tutchell v The Queen - [2018] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0016

KANE TUTCHELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2018
DATE OF JUDGMENT:	24 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 269
JUDGMENT APPEALED FROM:	[2017] VCC 1694 (Judge Lawson)

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CRIMINAL LAW – Appeal – Sentence – Non-parole period – Sentence on two counts of rape 8 years with non-parole period 5 years 9 months – Sentencing judge stating non-parole period fixed shorter than would otherwise have been due to prospects for rehabilitation – Whether judge manifestly failed to give effect to stated intention – Non-parole period 72 per cent of head sentence – Ratio between non-parole period and head sentence not determinative – Wallace v The Queen (2012) 35 VR 520; Kumova v The Queen (2012) 37 VR 538; Abdou v The Queen [2015] VSCA 359; Hill v The Queen [2004] VSCA 116; Dosen v The Queen [2012] VSCA 307, considered – Leave to appeal refused, appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC with Mr B W Johnston	Balmer & Associates
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

McLEISH JA
NIALL JA:

On 19 September 2017, the applicant pleaded guilty in the County Court to two charges of rape[1]. Following a plea hearing over two days, he was sentenced on 15 November 2017 to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years and 9 months.
[1]Crimes Act 1958 s 38. The maximum penalty is 25 years’ imprisonment.

The applicant seeks leave to appeal on a single ground, alleging that the sentencing judge failed to give effect to her stated intention to impose a non-parole period shorter than would otherwise have been appropriate. For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

At the time of the offending, the applicant was aged 23 and the complainant was aged 28. The complainant is a citizen of Germany who was on holiday in Australia. The applicant and the complainant were not known to each other prior to the offending.

On 2 March 2016, the day after she arrived in Melbourne, the complainant was celebrating her 28^th birthday with a friend. After consuming a large amount of alcohol at various venues, they arrived at a bar located on Spencer Street in Melbourne known as U-Bar, where the complainant continued to consume alcohol, danced and sang karaoke. She had little to no memory of the events at U-Bar. However, while there she met the applicant. They left the establishment together in a taxi and travelled to an address in Lara where the applicant was living.

The applicant stated in his record of interview that he and the complainant had consensual sexual intercourse at his house in Lara. The complainant had no memory of this sexual activity,…

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 Tutchell v The Queen

Details

AGLC: Kane Tutchell v The Queen [2018] VSCA 269
Case: [2018] VSCA 269
Decision Date: 24 October 2018

CaseChat Overview and Summary

In the matter of Tutchell v The Queen, the appellant sought to challenge the sentence imposed upon him by the sentencing judge, which was an eight-year imprisonment term for two counts of rape with a non-parole period of five years and nine months. The appellant contended that the sentencing judge had manifestly failed to give effect to his stated intention regarding the prospects for rehabilitation, resulting in a non-parole period that was excessively short. The case was heard by the Court of Appeal, which was tasked with determining whether the sentencing judge had indeed erred in the manner he had fixed the non-parole period.

The legal issues before the Court of Appeal centred on whether the sentencing judge had correctly exercised his discretion in determining the non-parole period, and if the ratio between the non-parole period and the head sentence was determinative of whether the judge had manifestly failed to give effect to his stated intention. The Court of Appeal considered relevant case law, including Wallace v The Queen, Kumova v The Queen, Abdou v The Queen, Hill v The Queen, and Dosen v The Queen, to assess whether the sentencing judge had erred in fixing the non-parole period.

Upon considering the relevant authorities and the circumstances of the case, the Court of Appeal found that the ratio between the non-parole period and the head sentence was not determinative of whether the sentencing judge had manifestly failed to give effect to his stated intention. The Court of Appeal held that the sentencing judge had not erred in fixing the non-parole period, as the non-parole period constituted 72 per cent of the head sentence, which was not an excessive proportion. Consequently, the Court of Appeal dismissed the appeal and denied the appellant leave to appeal.

As a result of the Court of Appeal's decision, the original sentence imposed by the sentencing judge, which included an eight-year imprisonment term for two counts of rape with a non-parole period of five years and nine months, remained in place. The appellant's appeal was dismissed, and no further appeal was permitted.

Orders