C G T v The Queen (No 2) - [2012] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0955A

CGT
	Appellant
v
THE QUEEN (No 2)	Respondent

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JUDGES:	NEAVE and HARPER JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2012
DATE OF JUDGMENT:	23 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 23
JUDGMENT APPEALED FROM:	R v [CF and CGT] (Unreported, County Court of Victoria, Judge Wilmoth, 18 December 2007)

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CRIMINAL LAW – Sentence – Six counts of maintaining a sexual relationship with a child under the age of 16 – Offending committed with appellant’s wife over a four year period against the appellant’s two stepchildren – Plea of guilty – Sentenced to imprisonment for 14 years with a non-parole period of 10 years – Appellant aged 67 at the time of sentence – Whether sentencing judge erred in failing to give adequate consideration to the appellant’s age and plea of guilty – Parity – Differences in roles of husband and wife – Whether sentence manifestly excessive – R v Hunter (1984) 36 SASR 101, R v Yates [1985] VR 41 and R v Bazley (1993) 65 A Crim R 154 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Michael J Gleeson & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
HARPER JA
HOLLINGWORTH AJA:

Background

On 31 May 2007, the appellant pleaded guilty to six counts of maintaining a sexual relationship with two children under the age of 16 to whom he was not married. One child was his stepdaughter. I shall refer to her as ‘C1’. The other was her brother, ‘C2’. Two of the first four counts nominated C1 as the victim; the other two nominated C2. Each such count related to a calendar year, and together they covered the period 1 January 2002 – 31 December 2003. Count 5 nominated C1 as the victim, and covered the period 1 January 2004 – 31 December 2005. Count 6 covered the same period, with C2 as the nominated victim.

The plea was followed by a series of convoluted steps. On 21 September 2007, the appellant applied to change his plea to that of not guilty. On 1 October, that application was withdrawn. On 18 October, following a trial which began 10 days before, a jury returned a verdict of guilty on multiple charges laid against the appellant’s wife, to whom we shall refer as CF, for offending which was directly linked with his. The pleas of both husband and wife were heard together on 19 November and 6 December 2007.

Sentence was pronounced on 18 December 2007. By the orders then made, the appellant was required to serve 6 years’ imprisonment on each of the six counts to which he had pleaded guilty. Count 1 was the base sentence; and the sentencing judge ordered that the 6 years to be served on that sentence be cumulated with 4 years of the sentence on count…

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: [2012] VSCA 23
Decision Date: 23 February 2012

CaseChat Overview and Summary

The appeal before the Court was brought by a man convicted of six counts of maintaining a sexual relationship with a child under the age of 16. The offences were committed over a four-year period against his two stepchildren, in conjunction with his wife. The appellant entered a plea of guilty and was sentenced to 14 years’ imprisonment with a non-parole period of 10 years. The appellant, aged 67 at the time of sentencing, argued that the sentencing judge failed to give adequate consideration to his age and plea of guilty. Additionally, he argued that the parity between the sentences of himself and his wife was unjust, given their differing roles in the offending. The appellant also contended that the sentence was manifestly excessive.

The primary issues before the court were whether the sentencing judge erred in not considering the appellant’s age and plea of guilty adequately, whether the parity between the sentences of the appellant and his wife was appropriate, and whether the sentence was manifestly excessive. The court considered the relevant authorities, including R v Hunter, R v Yates, and R v Bazley. The court also noted the appellant's age, plea of guilty, and the nature of the offending.

In dismissing the appeal, the court found that the sentencing judge had given adequate consideration to the appellant's age and plea of guilty. The court also held that the parity between the sentences of the appellant and his wife was appropriate, given their differing roles in the offending. The court further determined that the sentence was not manifestly excessive, taking into account the seriousness of the offending and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the original sentence. The appellant's arguments were not accepted, and the sentence imposed by the sentencing judge was considered appropriate and just.

Orders