Barnard (a pseudonym) v The Queen

Case [2022] VSCA 42


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0073

STEPHEN BARNARD (a pseudonym)[1] Appellant
v
THE QUEEN Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

----

JUDGE: PRIEST and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 22 March 2022
DATE OF JUDGMENT: 30 March 2022
MEDIUM NEUTRAL CITATION: [2022] VSCA 42
JUDGMENT APPEALED FROM: DPP v Barnard (a pseudonym) [2021] VCC 523 (Judge Cahill)

---

CRIMINAL LAW – Appeal – Sentence – Five charges of sexual penetration of child under 16 – Delay between offending and sentence – Rehabilitation – Plea of guilty during COVID-19 pandemic – Whether sentence of 6 years and 3 months manifestly excessive – Appeal allowed – Appellant resentenced to 4 years and 6 months’ imprisonment with non-parole period of 2 years and 6 months.

---

APPEARANCES: Counsel Solicitors
For the Appellant Mr D A Dann QC Docherty Legal
For the Respondent Ms S Clancy Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

  1. This appeal against sentence was brought pursuant to leave granted on 18 October 2021.[2]  It arises in the following circumstances.

    [2]Barnard (a pseudonym) v The Queen (Unreported, Court of Appeal, Priest JA, 18 October 2021) (‘Leave Reasons’).

  1. On 27 April 2021, the appellant, aged 32 years,[3] pleaded guilty before a judge in the County Court to five charges of sexual penetration of a child under the age of 16.[4]

    [3]His date of birth is 11 June 1989.

    [4]Crimes Act 1958, s 45(1). The maximum penalty is 10 years’ imprisonment.

  1. Following a plea in mitigation, on 4 May 2021 the judge sentenced the appellant to six years and three months’ imprisonment, with a non-parole period of three years and three months, in accordance with the table below:

Charge Offence Sentence Cumulation
1 Sexual penetration of a child under 16 (rolled-up charge – 7 occasions) [digital-vaginal] 4 years Base
2 Sexual penetration of a child under 16 (rolled-up charge – 7 occasions) [penile-oral] 4 years 9 months
3 Sexual penetration of a child under 16 (rolled-up charge – 3 occasions) [penile-anal][5] 4 years 9 months
4 Sexual penetration of a child under 16 [lingual-vaginal] 3 years 3 months
5 Sexual penetration of a child under 16 (rolled-up charge – 3 occasions) [penile-vaginal] 3 years 6 months
4    Total Effective Sentence 6 years and 3 months’ imprisonment
5    Non-Parole Period 3 years and 3 months’ imprisonment
6    Section 6AAA Statement 8 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months.
7     Other orders Reporting for life pursuant to s 34 of the Sex Offenders Registration Act 2004

[5]Although nothing turns on it, it is noteworthy that in his sentencing reasons the judge acknowledged that the appellant fell to be sentenced as a serious sexual offender on charges 3, 4 and 5; yet, in apparent disconformity with s 6F(1) of the Sentencing Act 1991, the Record of Orders signed…

Continue reading Barnard (a pseudonym) v The Queen

Sign in free to access the full text

Details
AGLC
Barnard (a pseudonym) v The Queen [2022] VSCA 42
Case
[2022] VSCA 42
Decision Date

CaseChat Overview and Summary

The case of Barnard v The Queen involved an appeal by the defendant against the sentence imposed following his guilty plea to five charges of sexual penetration of a child under the age of 16. The case was heard in the Court of Appeal, which was tasked with determining whether the original sentence was manifestly excessive. The appellant was sentenced to six years and three months imprisonment, with a non-parole period of three years. The appellant argued that the sentence was excessively harsh due to the delay in sentencing, his demonstrated rehabilitation efforts, and the unique context of the plea being entered during the COVID-19 pandemic.

The central legal issue before the court was whether the original sentence was manifestly excessive, considering the appellant's guilty plea, the significant delay between the offending and sentencing, the appellant's efforts towards rehabilitation, and the extraordinary circumstances of the pandemic. The court was required to assess the appropriate weight to give to these factors in the sentencing process, and whether they warranted a reduction in the sentence.

In delivering the judgment, the court acknowledged the appellant's guilty plea, the significant delay in sentencing, and the appellant's efforts towards rehabilitation, including participating in programs designed to address his offending behaviour. The court also considered the extraordinary circumstances of the pandemic, which had caused delays in the judicial process. After carefully weighing these factors, the court found that the original sentence was indeed manifestly excessive. As a result, the appeal was allowed, and the appellant was resentenced to four years and six months' imprisonment, with a non-parole period of two years and six months.

The court's decision resulted in the appellant being resentenced, reflecting a more balanced consideration of the mitigating factors presented. This outcome highlights the importance of comprehensive sentencing assessments that take into account the full context of an offender's circumstances, including delays in the judicial process and genuine rehabilitation efforts.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.