A W P v The Queen

Case [2012] VSCA 41


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0058

AWP Appellant
v
THE QUEEN Respondent

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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)

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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.

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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:

  1. 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:

  1. 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.

  1. 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

  1. 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.

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A W P v The Queen [2012] VSCA 41
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[2012] VSCA 41
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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.

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