Carr (a pseudonym) v The Queen - [2021] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0252

JACK CARR (a pseudonym)[1]	Applicant
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:	4 May 2021
DATE OF JUDGMENT:	13 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 130
JUDGMENT APPEALED FROM:	[2019] VCC 1750 (Judge Tinney)

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CRIMINAL LAW — Appeal — Sentence — Sexual penetration of a child or lineal descendant and associated offences — Intellectual impairment — Total effective sentence of 9 years and 4 months’ imprisonment with 6 years and 4 months non-parole — Whether moral culpability reduced — Whether general and specific deterrence moderated — Appeal allowed — Resentenced to 7 years’ imprisonment with 4 years and 6 months non-parole — Muldrock v The Queen (2011) 244 CLR 120 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr J Connolly	Patrick W Dwyer
For the Respondent:	Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

Introduction

On 28 August 2019, a jury empanelled in the County Court found the applicant guilty of sexual assault of a child under the age of 16[2] (five charges – charges 1, 2, 4, 6 and 7), sexual penetration of a child or lineal descendant[3] (two charges – charges 3 and 5) and making a threat to kill[4] (charge 8).
[2]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 50C(1). The maximum penalty is 25 years’ imprisonment.
[4]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.

Following a plea in mitigation, on 24 October 2019 the trial judge sentenced the applicant to a total effective sentence of nine years and four months’ imprisonment, with a non-parole period of six years and four months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Sexual assault of a child under the age of 16 7 days —

2 Sexual assault of a child under the age of 16 2 months —

3 Sexual penetration of a child or lineal descendant 7 years Base

4 Sexual assault of a child under the age of 16 3 months —

5 Sexual penetration of a child or lineal descendant 6 years 6 months 1 year

6 Sexual assault of a child under the age of 16 2 years 3 months

7 Sexual assault of a child under the age of 16 2 years 3 months

8 Make threat to kill 2 years 10 months

Total Effective Sentence 9 years and 4 months’ imprisonment

Non-Parole Period 6 years and 4 months’ imprisonment

Other orders Sentenced as a serious sexual offender on charges 2, 4, 5, 6, 7 and 8 pursuant to s 6F of the Sentencing Act 1991; registration for life pursuant to s 34 of the Sex Offenders Registration Act 2004; forensic procedure order…

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 Carr (a pseudonym) v The Queen

Details

AGLC: Carr (a pseudonym) v The Queen [2021] VSCA 130
Case: [2021] VSCA 130
Decision Date: 13 May 2021

CaseChat Overview and Summary

The appellant, identified as Carr, appealed against his sentence for multiple offences including sexual penetration of a child and associated crimes. The appeal was heard in the High Court of Australia. The central issue was whether the original sentence, which amounted to 9 years and 4 months' imprisonment with a non-parole period of 6 years and 4 months, was appropriate given Carr's intellectual impairment and the principles of sentencing for such offences. The court had to determine if Carr's moral culpability was sufficiently reduced to warrant a lower sentence, and whether the principles of general and specific deterrence were adequately balanced with the need to consider his intellectual impairment.

The court considered the sentencing principles outlined in Muldrock v The Queen, where it was held that intellectual impairment could be a mitigating factor in sentencing. The High Court reviewed the evidence regarding Carr's intellectual functioning and the impact it had on his culpability and the need for deterrence. The court found that the sentencing judge had not adequately considered the full extent of Carr's impairment and how it affected his moral culpability. Additionally, the court determined that the principles of general and specific deterrence were sufficiently moderated by Carr's intellectual impairment. As a result, the court allowed the appeal and resentenced Carr to 7 years' imprisonment with a non-parole period of 4 years and 6 months.

The High Court's decision was based on the need to balance the principles of sentencing with the mitigating factors presented by Carr's intellectual impairment. The court emphasised the importance of accurately assessing and considering such factors to ensure a just and appropriate sentence. The resentencing reflects a recognition of these mitigating factors, resulting in a reduced overall sentence. The final orders of the court were that the original sentence was quashed, and Carr was resentenced to 7 years' imprisonment with a non-parole period of 4 years and 6 months.

Orders