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ABC (a pseudonym) v The King

ABC (a pseudonym) v The King

Case [2023] VSCA 280 16 November 2023

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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…

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 ABC (a pseudonym) v The King

Details

AGLC: ABC (a pseudonym) v The King [2023] VSCA 280
Case: [2023] VSCA 280
Decision Date: 16 November 2023

CaseChat Overview and Summary

ABC (a pseudonym) sought leave to appeal against their sentence and the orders made in relation to it. ABC was convicted of multiple charges including an attempt to commit an offence. The Court of Appeal was asked to consider whether the judge had the power to release ABC on recognizance, whether the judge had correctly considered the attempt as if it were the substantive offence, whether the judge had properly applied the discount for cooperation, and whether the sentence and order for cumulation were manifestly excessive. The Court of Appeal found that the judge did not have the power to release ABC on recognizance as the sentence was for at least three years, and the recognizance release order could only be made if the sentence was less than three years. The Court found that the judge had correctly applied the legislation to treat the attempt as if it were the substantive offence. The Court found that while ABC had cooperated, they had prevaricated in their record of interview, and it was open to the judge to allow some but not complete moderation for cooperation. Finally, the Court found that the sentence and order for cumulation were not manifestly excessive and dismissed the application for leave to appeal.

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.

Orders