JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 December 2018
DATE OF ORDER:	5 December 2018
DATE OF REASONS:	14 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 344
JUDGMENT APPEALED FROM:	[2018] VCC 1245 (Judge Hannan)

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CRIMINAL LAW – Appeal – Sentence – Rape (four representative charges), false imprisonment, intentionally cause injury – Offences against same victim in both Victoria and New South Wales – New South Wales sentence 11 years with non-parole period of 7 years – Victorian sentence 13 years and 4 months (4 years and 4 months concurrent with New South Wales sentence) – New non-parole period of 14 years – Whether manifestly excessive – Whether totality infringed – Borderline personality disorder – Whether moral culpability reduced – Offending extremely serious – Victim tormented and degraded over lengthy period – Sentence lenient – Leave to appeal refused – DPP v O’Neill (2014) 47 VR 395 considered, Mill v The Queen (1988) 166 CLR 59 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Shwartz	Dribbin and Brown Criminal Law
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA:

Summary

The applicant pleaded guilty to four representative charges of rape, one charge of false imprisonment and one charge of intentionally causing injury. The offences were committed against the same victim (‘B’), over a period commencing on the evening of Saturday 2 July 2011 and ending in the early hours of Monday 4 July 2011.

Apart from their extended duration, these offences are unusual for the degree of torment and degradation which the applicant inflicted on B. There is a strikingly sadistic quality about his treatment of B, whom he had got to know when she took him in as a boarder. As will appear, his offending was an ‘overwhelmingly aggressive’ response to her rejection of his sexual advances.

From a sentencing perspective, the case has a further unusual feature. With B still detained, the applicant travelled into New South Wales (‘NSW’), where he committed further offences against her, of aggravated sexual intercourse without consent (three counts), indecent assault (two counts) and one count of detaining for advantage. He then tied B up, locked her in a cupboard and left. She eventually escaped on the evening of Monday 4 July.

The applicant contested the NSW charges but was convicted on all counts. He was sentenced on 14 October 2013 to a total effective term of imprisonment of 11 years, with a non-parole period of seven years. The NSW non-parole period expires this month. The applicant is serving that sentence in Victoria, under the provisions of the Prisoners (Interstate Transfer) Act 1983.

On the Victorian charges, the applicant was sentenced to 13 years and four months’ imprisonment, of which four years and four months were ordered to be served concurrently with the NSW sentence.…

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 Wheeldon v The Queen

Details

AGLC: Wheeldon v The Queen [2018] VSCA 344
Case: [2018] VSCA 344
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the case of Wheeldon v The Queen, the appellant, who had been convicted on multiple counts of serious sexual offences, sought leave to appeal against the severity of his sentence. The offences, which included rape, false imprisonment, and intentionally causing injury, were committed against the same victim in both Victoria and New South Wales. The appellant was sentenced to 11 years imprisonment in New South Wales, with a non-parole period of 7 years, and a further 13 years and 4 months in Victoria, with 4 years and 4 months running concurrently to the New South Wales sentence. The Victorian Supreme Court set a new non-parole period of 14 years. The appellant argued that the totality of his sentence was manifestly excessive and infringed the principle of totality, and that his moral culpability was reduced due to a borderline personality disorder. The prosecution maintained that the offending was extremely serious, with the victim being tormented and degraded over a lengthy period, and the sentence was in fact lenient.

The court was required to determine whether the sentence imposed by the Victorian Supreme Court was manifestly excessive and whether it breached the principle of totality. The court also needed to assess the impact of the appellant's borderline personality disorder on his moral culpability, and whether this warranted a reduction in sentence. Furthermore, the court needed to consider the seriousness of the offences and the impact on the victim, and whether the sentence was appropriate in light of these factors.

In considering the appeal, the court examined the principle of totality and whether the cumulative effect of the sentences imposed by both jurisdictions was manifestly excessive. The court found that the Victorian sentence, when considered in conjunction with the New South Wales sentence, did not result in a manifestly excessive punishment. The court noted that the offending was of a serious nature, with the victim being subjected to prolonged torment and degradation. The court also considered the appellant's borderline personality disorder but found that it did not significantly reduce his moral culpability. The court concluded that the sentence was appropriate and not manifestly excessive, and the principle of totality was not infringed. Accordingly, the court refused the appellant leave to appeal.

The final orders of the court were to refuse the appellant leave to appeal against his sentence, thereby upholding the sentence imposed by the Victorian Supreme Court.

Orders