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Barnard (a pseudonym) v The Queen

Barnard (a pseudonym) v The Queen

Case [2022] VSCA 42 30 March 2022

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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.

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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)

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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.

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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

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’).

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.

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…

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

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 Barnard (a pseudonym) v The Queen

Details

AGLC: Barnard (a pseudonym) v The Queen [2022] VSCA 42
Case: [2022] VSCA 42
Decision Date: 30 March 2022

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