Blackwood v The Queen - [2014] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0183

CHRISTOPHER JOHN BLACKWOOD
	Applicant
v
THE QUEEN
	Respondent

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JUDGES	NEAVE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 February 2014
DATE OF JUDGMENT	26 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 47
JUDGMENT APPEALED FROM	DPP v Blackwood (Unreported, County Court of Victoria, Judge Gamble, 4 September 2013)

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CRIMINAL LAW – Appeal against sentence – Applicant pleaded guilty to two counts of sexual penetration of a child under sixteen and three counts of indecent act with or in the presence of child under sixteen – Respondent conceded one indecent act sentence manifestly excessive but total effective sentence within range – Total effective sentence of six years with non-parole period of three years six months – Whether sentence manifestly excessive – Leave granted – Appeal dismissed.

CRIMINAL LAW – Application for leave to appeal against sentence – Application to add ground of appeal – Whether trial judge erred in describing conduct as ‘premeditated’ – No error – Leave to add ground granted – Leave to appeal with respect to this new ground dismissed – No point of principle.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr P F Tehan QC	Malkoun & Co
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I agree with Coghlan JA.

COGHLAN JA:

On 17 July 2013, the applicant pleaded guilty to the offences set out in the table below. After a plea conducted on that day and on 4 September 2013, he was sentenced on 4 September 2013 to a total effective sentence of six years’ imprisonment with a non-parole period of three years and six months.

Charge on Indictment
C13580062 Offence Maximum Sentence Cumulation

1 (RK) Sexual penetration of a child under sixteen [s 45(1) Crimes Act 1958] 25 years [s 45(2)(b) Crimes Act 1958] 3 years 12 months

2 (RK) Sexual penetration of a child under sixteen [s 45(1) Crimes Act 1958] 25 years 3 years 6 months Base

3 (LB) Indecent act with or in the presence of child under sixteen [s 47(1) Crimes Act 1958] 10 years [s 47(1) Crimes Act 1958] 18 months 8 months

4 (LB) Indecent act with or in the presence of child under sixteen [s 47(1) Crimes Act 1958] 10 years 12 months 4 months

5 (LB) Indecent act with or in the presence of child under sixteen [s 47(1) Crimes Act 1958] 10 years 16 months 6 months

Total Effective Sentence: 6 years

Non-Parole Period: 3 years 6 months

Pre-sentence Detention Declared: Nil

6AAA Statement: TES 7 years 6 months NPP 5 years

Other orders: Sex offender Registration for Life. Forensic Sample Order. Sentenced as a serious sexual offender Charges 3, 4 and 5. In respect of these charges, the judge made orders for concurrency rather than cumulation, however the effect is stated above in terms of cumulation.

The circumstances of the offending are…

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.

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Details

Case: [2014] VSCA 47
Decision Date: 26 March 2014

CaseChat Overview and Summary

Blackwood was convicted and sentenced in the County Court for multiple offences against children under the age of sixteen. The respondent, the Crown, accepted that one of the sentences imposed was manifestly excessive but argued that the total effective sentence was within the appropriate range. Blackwood sought leave to appeal against his sentence, arguing that the total effective sentence was manifestly excessive. He also sought to add a ground of appeal, alleging that the trial judge erred in describing his conduct as premeditated. The Crown conceded that one of the sentences was manifestly excessive, but maintained that the overall sentence was within the appropriate range. The court considered whether the sentence was manifestly excessive and whether the trial judge erred in describing the conduct as premeditated.

The court found that the trial judge had correctly assessed the totality of the offending and concluded that the total effective sentence was not manifestly excessive. The court found no error in the trial judge's characterisation of the offending as premeditated, and the application to add this ground of appeal was dismissed as there was no point of principle involved. The appeal against sentence was dismissed, and leave to appeal with respect to the new ground was also dismissed. The final orders were that the appeal against sentence was dismissed, and the application to add a ground of appeal was dismissed, with no point of principle involved.

Orders