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Argyle v The King

Argyle v The King

Case [2023] VSCA 51 14 March 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0173

LIAM ARGYLE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victims of sexual assault offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 51
JUDGMENT APPEALED FROM:	DPP v [Argyle] (Unreported, County Court of Victoria, Judge Todd, 31 October 2022)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – Sexual offending against stepdaughters – Offending spanning eleven years – Three charges of indecent assault – Seven charges of indecent assault upon a female – Total effective sentence 4 years and 3 months’ imprisonment – Non-parole period 2 years and 2 months – Whether sentence manifestly excessive – Offender of advanced age – Sentences within range – Leave to appeal refused.

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Counsel for written submissions
Applicant:		Ms A Renieris
Respondent:		Ms N Rogers SC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA:

After a trial before a judge of the County Court sitting alone, the applicant was convicted of three charges of indecent assault (contrary to s 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980) and seven charges of indecent assault upon a female (contrary to s 55(1) of the Crimes Act 1958 as amended by the Crimes Amendment Act 1967). He was sentenced on 28 October 2022 to a total effective sentence of four years and three months’ imprisonment with a non-parole period of two years and two months, as set out below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
4	Indecent assault (s 44(1) of the Crimes Act)	5 years	18 months	3 months
7	Indecent assault (s 44(1) of the Crimes Act)	5 years	1 year	2 months
9	Indecent assault (s 44(1) of the Crimes Act)	5 years	1 year	2 months
11	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	15 months	3 months
12	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	15 months	3 months
13	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	15 months	3 months
15	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	2 years and 2 months	Base
16	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	18 months	4 months
17	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years	18 months	4 months
18	Indecent assault upon female (s 55(1) of the Crimes Act)	5 years

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 Argyle v The King

Details

AGLC: Argyle v The King [2023] VSCA 51
Case: [2023] VSCA 51
Decision Date: 14 March 2023

CaseChat Overview and Summary

Argyle was the appellant in this case, which was heard by the High Court of Australia. The dispute centred on the sentence imposed by the Supreme Court of Victoria, following Argyle’s conviction for multiple sexual offences against his stepdaughters. The offences spanned eleven years and involved three charges of indecent assault and seven charges of indecent assault upon a female. The Supreme Court of Victoria sentenced Argyle to a total effective term of imprisonment of four years and three months, with a non-parole period of two years and two months. Argyle sought leave to appeal against his sentence, arguing that it was manifestly excessive, particularly given his advanced age and the fact that the sentences imposed were at the upper end of the range for such offences.

The primary legal issue before the court was whether the sentence imposed by the Supreme Court was manifestly excessive. This involved a consideration of the principles of sentencing for sexual offences, the totality principle, and the appropriate weight to be given to Argyle’s age. The court also needed to determine whether the sentences for the individual offences were within the range of sentences typically imposed for such crimes, and whether there were any other factors that warranted a reduction in sentence. The court was tasked with balancing the need to ensure that the sentence was adequate to reflect the seriousness of the offences against the potential harshness of the sentence, particularly in light of Argyle’s age.

The court found that the sentence imposed was within the range of sentences typically imposed for such offences and that the cumulative sentence reflected the totality of the offending. The court emphasised that the principle of totality required that the cumulative sentence be considered, and that it was appropriate for the cumulative sentence to reflect the extent of the offending. The court also noted that Argyle’s age was a relevant consideration, but it was not determinative. The court concluded that the sentence was not manifestly excessive and that there were no grounds to reduce the sentence. The court therefore refused leave to appeal.

No further orders were made by the court.

Orders