| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0048 |
| ABC (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]A pseudonym order was made by the County Court.
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| JUDGES: | PRIEST, NIALL and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 November 2023 |
| DATE OF JUDGMENT: | 16 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 280 |
| JUDGMENT APPEALED FROM: | [2023] VCC 446 (Judge Parrish) |
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CRIMINAL LAW – Leave to appeal – Sentence – Application of statutory power to release – Whether judge had power to release where sentence at least 3 years – Recognizance release order only made where sentence less than 3 years – Where sentence at least 3 years, non-parole period set unless Court determines it should not be set, in which case prisoner serves entire sentence.
CRIMINAL LAW – Leave to appeal – Sentence – Attempt – Whether judge treated attempt as if it were substantive offence – Judge required to apply legislation so as to include attempt.
CRIMINAL LAW – Leave to appeal – Sentence – Discount for cooperation – Whether applicant’s cooperation fully helpful – Applicant prevaricated in record of interview – Open to allow some but not complete moderation for cooperation.
CRIMINAL LAW – Leave to appeal – Sentence – Manifest excess – Whether sentence on charge 1 and order for cumulation manifestly excessive – Consideration of seriousness of charge 1 – Offending the subject of charges 1 and 2 distinct – Sentence and order for cumulation not outside the range – Leave to appeal refused.
Crimes Act1914 (Cth); Criminal Code (Cth).
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| Counsel | |||
| Applicant: | Mr P Kounnas | ||
| Respondent: | Ms K Breckweg with Mr J Manning | ||
Solicitors | |||
| Applicant: | Olinda Legal | ||
| Respondent: | Mr J Carter, Solicitor for Public Prosecutions | ||
PRIEST JA
NIALL JA
KAYE JA:
The applicant is a 71 year old man[2] who pleaded guilty before a judge of the County Court to Commonwealth child sex offences involving the use of a telecommunication service (both text and telephone) to procure and engage in sexual activity with a person he believed was a 14 year old girl. The charges were as follows:
(a)charge 1 alleged that the applicant had used a carriage service to procure a person believed to be under 16 years of age for sexual activity;[3] and
(b)charge 2 alleged that he used a carriage service for sexual activity with a person believed to be under 16 years of age.[4]
[2]He was 68 years old at the time of the offending, having been born on 30 July 1952.
[3]Contrary to Criminal Code (Cth), s 474.26(1) (‘the Code’). The maximum penalty is 15 years’ imprisonment.
[4]Contrary to the Code, ss 11.1(1) and 474.25A. The maximum penalty is 20 years’ imprisonment.
Following a plea in mitigation, the applicant was sentenced to a total effective sentence of 3 years and 9 months. That sentence was constituted by individual sentences of:
(a)3 years and 3 months on charge 2; and
(b)1 year and 6 months on charge 1.
The sentence on charge 1 will commence…
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- AGLC
- ABC (a pseudonym) v The King [2023] VSCA 280
- Case
- [2023] VSCA 280
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the statutory provisions and the relevant case law in relation to the power to release on recognizance, the treatment of attempts, the discount for cooperation, and the manifestly excessive test. The Court found that the judge had not erred in law or failed to take into account relevant matters in imposing the sentence and making the orders. The Court found that the sentence and order for cumulation reflected the seriousness of the offending and were not outside the range of sentences that could be imposed. The Court emphasised the importance of the trial judge’s role in assessing the circumstances of the case and the need for the Court of Appeal to show deference to the trial judge’s assessment unless it was plainly wrong.
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