Arnold (a pseudonym) v The Queen - [2013] VSCA 298

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0139

MARTIN ARNOLD (A PSEUDONYM)
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	WARREN CJ, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 October 2013
DATE OF JUDGMENT	10 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 298
JUDGMENT APPEALED FROM	DPP v [Arnold] (Unreported, County Court of Victoria, Judge Pullen, 1 May 2012)

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CRIMINAL LAW – Leave to appeal against sentence – Indecent act with a child under 16 and sexual penetration of a child under 16 – Total effective sentence of 7 years imprisonment – 5 years non-parole period fixed – Fresh evidence – Diagnosed with life-threatening condition after sentence – R v Nguyen [2006] VSCA 184 applied – Leave to appeal granted – Appeal allowed – Re-sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr D Dann	Ann Valos Criminal Law
For the Crown:	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I agree with the reasons articulated by Coghlan JA and the disposition he proposes.

PRIEST JA:

I also agree.

COGHLAN JA:

The applicant pleaded guilty to the charges set out below and was sentenced accordingly on 1 June 2012.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Indecent act with a child under 16
[Crimes Act 1958 (Vic) s 47(1)] 10 years
[Crimes Act 1958 (Vic) s 47(1)] 18 months 6 months

2 Sexual penetration of a child under 16 under care, supervision or authority
[Crimes Act 1958 (Vic) s 45(1)] 15 years
[Crimes Act 1958 (Vic) s 45(2)(b)] 4 years 12 months

3 Sexual penetration of a child under 16
[Crimes Act 1958 (Vic) s 45(1)] 10 years
[Crimes Act 1958 (Vic) s 45(2)(c)] 5 years 6 months Base

Total Effective Sentence: 7 years’ imprisonment

Non-Parole Period: 5 years

Pre-sentence Detention Declared: 282 days

6AAA Statement: 10 years imprisonment with a non-parole period of 7 years

Other orders:
Forensic sample order.

The applicant seeks leave to appeal against those sentences, having been granted leave by the Registrar to bring the application out of time on the following grounds:

Ground 1 - There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the applicant) by reason of fresh evidence demonstrating that:
(a) The applicant now suffers a serious illness, rendering incarceration more onerous; and
(b) The applicant now faces a significant probability of death in custody under the current sentence.

Ground 2 – The sentence was manifestly excessive, given the unusual mitigating features:
(a) in totality; and
(b) as to Count 3.

The applicant’s offending related to a long term sexual relationship which he had conducted with the victim KM (born 12 July 1979) whom he subsequently married. The illicit relationship took place between December 1992 and July 1995 when the complainant was between 13 and…

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 Arnold (a pseudonym) v The Queen

Details

AGLC: Arnold v The Queen [2013] VSCA 298
Case: [2013] VSCA 298
Decision Date: 10 October 2013

CaseChat Overview and Summary

The appellant, Arnold, was convicted of indecent acts and sexual penetration of a child under 16 years of age. He was sentenced to a total effective sentence of 7 years imprisonment, with a non-parole period of 5 years. Arnold sought leave to appeal against his sentence on the basis of fresh evidence that he had been diagnosed with a life-threatening condition following his sentencing. The court was required to determine whether the fresh evidence was sufficient to warrant leave to appeal and, if so, whether the sentence should be altered.

The central legal issue before the court was whether the fresh evidence of Arnold's medical condition was sufficient to warrant leave to appeal. The court also had to consider whether the sentence was appropriate in the circumstances, taking into account the fresh evidence. The court noted that, in R v Nguyen, the Victorian Court of Appeal held that a life-threatening medical condition could be a significant factor in determining whether leave to appeal should be granted. The court found that Arnold's condition was sufficiently serious to warrant leave to appeal. The court also found that the original sentence was inappropriate in light of the fresh evidence, and re-sentenced Arnold to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months.

In granting leave to appeal and allowing the appeal, the court found that the fresh evidence of Arnold's medical condition was a significant factor in determining the appropriate sentence. The court noted that the original sentence did not take into account the appellant's reduced life expectancy and the impact this would have on his ability to serve the sentence. The court also found that the original sentence was excessively punitive in light of the fresh evidence. The court re-sentenced Arnold to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months, taking into account his medical condition and the need for the sentence to be proportionate to the offending.

Orders