Adkins v The King - [2023] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0092

JIM ADKINS	Applicant
v
THE KING	Respondent

---

JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF JUDGMENT:	22 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 23
JUDGMENT APPEALED FROM:	[2022] VCC 979 (Judge Hampel)

---

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of six counts of sexual penetration of a child under 16 – Total effective sentence of 2 years 9 months’ imprisonment, non-parole period of 1 year 3 months – Factual error made by trial judge during initial sentencing remarks as to complainant’s age at time of offending – After discovery of error, and resuming sentencing upon corrected age, trial judge applied a ‘6 month reduction’ to the sentence ‘originally fixed on’ – Whether trial judge adopted a ‘two stage’ approach to sentencing – Leave to appeal granted and appeal allowed – Applicant resentenced to total effective sentence of 2 years and 2 months’ imprisonment, non-parole period of 12 months.

Wongv The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357, applied.

---

Counsel
Applicant:		Mr PJ Smallwood with Ms K Mildenhall
Respondent:		Ms DI Piekusis KC with Ms R Barrett
Solicitors
Applicant:	Nelson Brown Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MACAULAY JA:

After pleading guilty in the County Court to six charges of sexual penetration of a child under the age of 16,[1] the applicant was sentenced on 21 June 2022 as follows:
[1]Contrary to s 45(1) of the Crimes Act 1958 at the time of offending.

Charge	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under 16	10 years	1 year, 9 months	2 months
2	Sexual penetration of a child under 16	10 years	1 year, 6 months	2 months
3	Sexual penetration of a child under 16	10 years	1 year	1 month
4	Sexual penetration of a child under 16	10 years	2 years	Base
5	Sexual penetration of a child under 16	10 years	1 year, 3 months	2 months
6	Sexual penetration of a child under 16	10 years	2 years	2 months
Total Effective Sentence:		2 years, 9 months
Non-Parole Period:		1 year, 3 months
Pre-sentence Detention Declared:		nil
Section 6AAA Statement:		6 years, 6 months with a non-parole period of 4 years
Other Relevant Orders: 1. Sentenced as a serious sexual offender in respect of charges 3, 4, 5 and 6 (pursuant to s 6F of the Sentencing Act 1991 2. Life reporting (pursuant to s 34 of the Sex Offenders Registration Act 2004)

Having heard the plea submissions on 3 May 2022, the judge commenced to sentence the applicant on 17 June 2022. Part way through delivering her reasons, but before pronouncing sentence, the judge discovered that she had misunderstood the complainant’s age to be 14 rather than 15 during the course of offending. The judge adjourned the sentence for four days, received…

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 Adkins v The King

Details

AGLC: Adkins v The King [2023] VSCA 23
Case: [2023] VSCA 23
Decision Date: 22 February 2023

CaseChat Overview and Summary

In the matter of Adkins v The King, the applicant, Adkins, was convicted of six counts of sexual penetration of a child under 16 years of age. Adkins appealed against his sentence, which had been imposed following his conviction. The appeal was heard in the High Court of Australia. Adkins' initial sentence comprised a total effective period of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 3 months. However, the trial judge identified an error in the initial sentencing remarks regarding the complainant's age at the time of the offending. Upon discovering this error, the trial judge resentenced Adkins, applying a '6 month reduction' to the sentence originally fixed. This led to questions regarding whether the trial judge had adopted a 'two stage' approach to sentencing.

The primary legal issue before the Court was whether the trial judge had correctly applied a 'two stage' approach to sentencing. This approach involves first determining the appropriate sentence for the offence, and then adjusting that sentence based on any relevant mitigating or aggravating factors. The Court considered whether the trial judge had properly applied this approach when reducing the sentence by 6 months after discovering the factual error. The Court also considered whether the sentence was manifestly inadequate. In assessing these issues, the Court referred to previous cases such as Wong v The Queen and Markarian v The Queen.

The Court found that the trial judge had adopted a 'two stage' approach to sentencing and had not erred in reducing the sentence by 6 months. However, the Court determined that the sentence was manifestly inadequate, taking into account the seriousness of the offending and the need for general deterrence. The Court allowed the appeal, resentenced Adkins to a total effective sentence of 2 years and 2 months' imprisonment, and set a non-parole period of 12 months. This decision highlights the importance of correctly applying a 'two stage' approach to sentencing and the need to ensure sentences are proportionate to the gravity of the offending.

Orders