Legal Research
Cases
A W P v The Queen

A W P v The Queen

Case [2012] VSCA 41 8 March 2012

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0058

AWP	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	WEINBERG JA and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 January 2012
DATE OF JUDGMENT	8 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 41
JUDGMENT APPEALED FROM	R v [AWP] (Unreported, County Court of Victoria, Judge Cotterell, 25 February 2010)

---

CRIMINAL LAW - Sentence - Incest and indecent act with a child under 16 years - Sentenced to six years' imprisonment with a non-parole period of four years - New evidence of serious heart condition not available to sentencing judge - Condition would make imprisonment significantly more burdensome - Appeal allowed - Resentenced to six years' imprisonment with a non-parole period of three years.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Tait Lawyers
For the Respondent	Mr B Sonnett	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree, for the reasons given by Cavanough AJA, that this appeal should be allowed, and the appellant re-sentenced as his Honour proposes.

CAVANOUGH AJA:

On 1 April 2011, Ashley JA granted the appellant partial leave to appeal against a total effective sentence of six years’ imprisonment, with a non-parole period of four years, imposed on the appellant on 25 February 2010 after he had pleaded guilty in the County Court to three counts of indecent act and two counts of incest.

The sentence was made up as follows:

Count on Presentment Offence Maximum Sentence Cumulation

1 Indecent act with a child under 16 years [s 47 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] 10 months’ imprisonment 4 months

2 Indecent act with a child under 16 years [s 47 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] 1 year, 2 months’ imprisonment 6 months

3 Incest by a parent [s 44 Crimes Act 1958 (Vic)] 25 years’ imprisonment [s 44(1) Crimes Act 1958 (Vic)] 3 years, 6 months’ imprisonment Base sentence

4 Incest by a parent [s 44 Crimes Act 1958 (Vic)] 25 years’ imprisonment [s 44(1) Crimes Act 1958 (Vic)] 3 years, 6 months’ imprisonment 1 year

5 Indecent act with a child under 16 years [s 47 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 47(1) Crimes Act 1958 (Vic)] 1 year, 8 months’ imprisonment 8 months

Total Effective Sentence: 6 years’ imprisonment

Non-Parole Period: 4 years

Pre-sentence Detention Declared: 16 days

6AAA Statement: 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 6 months

Other orders:

· Sentenced as a Serious Sexual Offender on counts 3, 4 and 5: s 6F Sentencing Act 1991 (Vic)

· Sex Offenders Registration Order – mandatory lifetime reporting

· Forensic Sample Order

The ground upon which leave to appeal was granted, as reformulated by Ashley JA, was that the total effective sentence and non-parole period were manifestly excessive in all the circumstances of the case, having regard to excessive cumulation.

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 A W P v The Queen

Details

AGLC: A W P v The Queen [2012] VSCA 41
Case: [2012] VSCA 41
Decision Date: 8 March 2012

CaseChat Overview and Summary

A W P was convicted of two counts of incest and two counts of indecent acts with a child under 16 years of age. He was sentenced to a total of six years imprisonment with a non-parole period of four years. The appeal against sentence was heard by the Court of Appeal. The appeal concerned the sentence imposed on A W P, specifically whether it was appropriate in light of new evidence that had come to light since the original sentencing hearing. The new evidence was that A W P had a serious heart condition which had not been known to the sentencing judge at the time of the original sentencing hearing. This condition would make imprisonment significantly more burdensome for A W P.

The court was required to determine whether the new evidence was sufficient to warrant a reconsideration of the sentence imposed. The court noted that the seriousness of the offences committed by A W P was not in issue, and that the sentence imposed was within the range of sentences that could be imposed for such offences. However, the court also noted that the new evidence of A W P’s heart condition was relevant to the question of whether the sentence imposed was appropriate in all the circumstances. The court held that the new evidence did warrant a reconsideration of the sentence, as it would make imprisonment significantly more burdensome for A W P. The court accordingly allowed the appeal and resentenced A W P to six years imprisonment with a non-parole period of three years.

The court considered that the new evidence of A W P’s heart condition was relevant to the question of whether the sentence imposed was appropriate in all the circumstances. The court noted that the seriousness of the offences committed by A W P was not in issue, and that the sentence imposed was within the range of sentences that could be imposed for such offences. However, the court also noted that the new evidence of A W P’s heart condition was relevant to the question of whether the sentence imposed was appropriate in all the circumstances. The court held that the new evidence did warrant a reconsideration of the sentence, as it would make imprisonment significantly more burdensome for A W P. The court accordingly allowed the appeal and resentenced A W P to six years imprisonment with a non-parole period of three years.

Orders