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Best v The Queen

Best v The Queen

Case [2019] VSCA 124 7 June 2019

Principle of Parsimony

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0148

SCOTT PETER BEST Applicant

v

THE QUEEN Respondent
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JUDGES: BEACH, KYROU and KAYE JJA

WHERE HELD: MELBOURNE

DATE OF HEARING: 4 June 2019

DATE OF JUDGMENT: 7 June 2019

MEDIUM NEUTRAL CITATION: [2019] VSCA 124

JUDGMENT APPEALED FROM: [2018] VCC 921 (Judge Pullen)
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CRIMINAL LAW — Sentencing — Three charges of sexual penetration of a child under the age of 16 years — Four related summary charges — Applicant sentenced to five years, three months and 21 days’ imprisonment with a non-parole period of three years — Whether sentences manifestly excessive — Early guilty plea — Young offender — Remorse — Low risk of recidivism — Family support — Need for protective custody in adult gaol — Principle of parsimony —Application for leave to appeal against sentence granted — Appeal allowed — Applicant resentenced to two years, 10 months and 21 days’ imprisonment with a non-parole period of one year and nine months.
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APPEARANCES: Counsel Solicitors

For the Applicant: Mr P J Smallwood with
Mr J Connolly Adrian Paull Criminal Lawyers Pty Ltd

For the Respondent: Mr J C J McWilliams Mr J Cain, Solicitor for Public Prosecutions
BEACH JA
KYROU JA
KAYE JA:
1 The applicant pleaded guilty before the County Court to three charges of sexual penetration of a child under the age of 16 years, and to four related summary charges. After a plea that was presented on his behalf, he was sentenced to a total effective term of five years, three months and 21 days’ imprisonment, with a non-parole period of three years.[1] That sentence was comprised as follows:
[1] DPP v Best [2018] VCC 921 (‘Reasons’).

Charge Offence Max Penalty Sentence Cumulation

1
Sexual penetration of a child under 16

Crimes Act 1958 s 45(1)
10 years[2] 15 months 7 months

2
Sexual penetration of a child under 16

Crimes Act 1958 s 49B(1)
15 years[3] 42 months Base

3 Sexual penetration of a child under 16
Crimes Act 1958 s 49B(1) 15 years 2 years 12 months

Related Summary
Offence 2
(CR-18-00517) Harass witness
Summary Offences Act 1966 s 52A 120 penalty units or 12 months 3 months 1 month

Related Summary
Offence 4 (CR-18-00517) Contravene a conduct condition of bail
Bail Act 1977 s 30A(1) 30 penalty units or 3 months 30 days 14 days

Related Summary
Offence 6 (CR-18-00517) Contravene family violence intervention order
Family Violence Protection Act 2008 s 123(2) 240 penalty units or 2 months 2 months 1 month

Related Summary
Offence 4 (CR-18-00518) Contravene a conduct condition of bail
Bail Act 1977 s 30A(1) 30 penalty units or 3 months 14 days 7 days

Total Effective Sentence: 5 years 3 months and 21 days’ imprisonment

Non-Parole Period: 3 years

Pre-sentence detention declared: 243 days

6AAA Statement 9 years’ imprisonment with a non-parole period of 6 years

Ancillary orders Forfeiture order, Sex Offender Registration Act 2004 s 34 – reporting for life
[2]Charge 1 has a…

*Charge*	*Offence*	*Max Penalty*	*Sentence*	*Cumulation*
1	Sexual penetration of a child under 16 Crimes Act 1958 s 45(1)	10 years[2]	15 months	7 months
2	Sexual penetration of a child under 16 Crimes Act 1958 s 49B(1)	15 years[3]	42 months	Base
3	Sexual penetration of a child under 16 Crimes Act 1958 s 49B(1)	15 years	2 years	12 months
Related Summary Offence 2 (CR-18-00517)	Harass witness Summary Offences Act 1966 s 52A	120 penalty units or 12 months	3 months	1 month
Related Summary Offence 4 (CR-18-00517)	Contravene a conduct condition of bail Bail Act 1977 s 30A(1)	30 penalty units or 3 months	30 days	14 days
Related Summary Offence 6 (CR-18-00517)	Contravene family violence intervention order Family Violence Protection Act 2008 s 123(2)	240 penalty units or 2 months	2 months	1 month
Related Summary Offence 4 (CR-18-00518)	Contravene a conduct condition of bail Bail Act 1977 s 30A(1)	30 penalty units or 3 months	14 days	7 days
Total Effective Sentence:	5 years 3 months and 21 days’ imprisonment
Non-Parole Period:	3 years
Pre-sentence detention declared:	243 days
6AAA Statement	9 years’ imprisonment with a non-parole period of 6 years
Ancillary orders	Forfeiture order, Sex Offender Registration Act 2004 s 34 – reporting for life

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 Best v The Queen

Details

AGLC: Best v The Queen [2019] VSCA 124
Case: [2019] VSCA 124
Decision Date: 7 June 2019

CaseChat Overview and Summary

In the case of Best v The Queen, the applicant appealed against his sentence of five years, three months and 21 days’ imprisonment, with a non-parole period of three years, imposed for three charges of sexual penetration of a child under the age of 16 years, and four related summary charges. The Court of Appeal was required to determine whether the sentence was manifestly excessive. The applicant had entered an early guilty plea, was a young offender, had shown remorse, and was considered a low risk of recidivism. Additionally, the applicant was receiving family support and required protective custody in an adult gaol. The principle of parsimony was also considered.

The Court of Appeal held that the sentence was manifestly excessive, taking into account the principle of parsimony and the circumstances of the applicant. The court found that the applicant’s early guilty plea, remorse, low risk of recidivism, and family support were significant mitigating factors. The need for protective custody in an adult gaol was also considered. The Court of Appeal allowed the appeal and resentenced the applicant to two years, 10 months and 21 days’ imprisonment, with a non-parole period of one year and nine months.

The final orders of the Court of Appeal were that the applicant’s appeal against sentence was allowed, and he was resentenced to two years, 10 months and 21 days’ imprisonment, with a non-parole period of one year and nine months. The Court of Appeal considered the principle of parsimony, the mitigating factors of the applicant’s early guilty plea, remorse, low risk of recidivism, and family support, and the need for protective custody in an adult gaol. The original sentence was deemed manifestly excessive, and the resentencing reflected a more appropriate punishment for the applicant’s crimes.

Orders