Violatzi v The Queen - [2011] VSCA 424

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0133

LAMBROSE VIOLATZI	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and HANSEN JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	19 October 2011
DATE OF JUDGMENT	15 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 424
JUDGMENT APPEALED FROM	R v Violatzi (Unreported, County Court of Victoria, Judge Howard, 30 April 2010)

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CRIMINAL LAW – Conviction – Rape – Direction that even if applicant believed complainant consenting, jury needed to consider whether applicant aware complainant might not be consenting – Worsnop v The Queen (2010) 28 VR 187 considered – Direction irrelevant to case as conducted – No error of law or substantial miscarriage of justice – Leave refused.

CRIMINAL LAW – Sentence – Rape – Finding of poor rehabilitation prospects open – Seven years’ imprisonment with non-parole period of five years not manifestly excessive – Leave refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr C B Boyce	Michael J Gleeson & Associates Pty
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Hansen JA. I would refuse the applications for leave to appeal against conviction and sentence for the reasons that his Honour gives.

HANSEN JA:

On 5 March 2010 a County Court jury, by majority verdict, found Lambrose Violatzi (‘the applicant’) guilty of one count of rape. Following a plea in mitigation, the applicant was sentenced on 30 April 2010 to seven years’ imprisonment with a non-parole period of five years.

The applicant seeks leave to appeal against conviction and, if the conviction is sustained, against sentence.

In essence, the applicant complains that the trial miscarried by reason of the judge directing the jury in the manner held to have been erroneous in Worsnop v The Queen.[1] That is, the judge told the jury that even if they were satisfied beyond reasonable doubt that the applicant believed the complainant was consenting, the jury still needed to consider whether (and might yet find that) the applicant was aware of the possibility that she was not consenting, in which case the fourth element (mens rea) of the offence of rape would be met.
[1](2010) 28 VR 187.

The respondent submits that in the particular circumstances of the trial, the judge’s directions could not have affected the jury’s verdict.

The relevant facts and evidence are in short compass.

On 13 February 2008 the applicant, then aged 43, approached the 17 year old complainant, who was working as a street prostitute in the Dandenong CBD. She

told the applicant that her price was $50 for ‘straight sex’, meaning vaginal intercourse, and $70 for ‘half and half’, meaning vaginal intercourse plus oral sex. The complainant got into the applicant’s car, and the applicant drove to an isolated reserve about 1.6 km from the Dandenong CBD. Upon arrival, they got into…

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 Violatzi v The Queen

Details

AGLC: Violatzi v The Queen [2011] VSCA 424
Case: [2011] VSCA 424
Decision Date: 15 December 2011

CaseChat Overview and Summary

The case of Violatzi v The Queen involved the appellant contesting his conviction for rape and the sentence imposed. The appellant argued that the trial judge's direction to the jury regarding the mens rea for the offence of rape was flawed and that the sentence was manifestly excessive. The appeal against conviction and sentence was heard by the High Court of Australia.

The legal issues before the Court were whether the trial judge's direction to the jury regarding the mens rea for the offence of rape was correct, and whether the sentence was manifestly excessive. The Court examined whether the direction given to the jury was relevant to the case as conducted and whether there was any error of law or substantial miscarriage of justice. Additionally, the Court considered whether the finding of poor rehabilitation prospects was open to the sentencing judge and whether the sentence imposed was manifestly excessive.

The Court held that the trial judge's direction to the jury was not irrelevant to the case as conducted and there was no error of law or substantial miscarriage of justice. The Court found that the direction was in line with the decision in Worsnop v The Queen, which held that even if an accused believed the complainant was consenting, the jury must still consider whether the accused was aware that the complainant might not be consenting. The Court also held that the finding of poor rehabilitation prospects was open to the sentencing judge and that the sentence of seven years' imprisonment with a non-parole period of five years was not manifestly excessive.

The High Court refused the appellant's application for special leave to appeal, meaning that the conviction and sentence stand as decided by the lower courts. The Court held that there was no error of law or substantial miscarriage of justice in the trial or sentencing proceedings.

Orders