[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES:
WEINBERG, BEACH and HARGRAVE JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
19 March 2018
DATE OF JUDGMENT:
11 April 2018
MEDIUM NEUTRAL CITATION:
[2018] VSCA 88
JUDGMENT APPEALED FROM:
DPP v Carter (a pseudonym) (Unreported, County Court of Victoria, Judge Pullen, 7 April 2017)
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CRIMINAL LAW – Appeal – Sentence – Two charges of incest – Total effective sentence of eight years with a non-parole period of five years – Whether sentencing judge erroneously classified the offending as ‘mid-range’ – Relevance of sentencing practices at the time of offending where there has been delay – Stalio v The Queen (2012)46 VR 426 considered – Whether sentence manifestly excessive – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr T Marsh with Mr R de Vietri
Victoria Legal Aid
For the Crown
Mr B L Sonnet
Mr J Cain, Solicitor for Public Prosecutions
WEINBERG JA BEACH JA HARGRAVE JA:
On 9 June 2015, the applicant was charged with three counts of incest occurring in early 2003 (charge 1) and late 2004 (charges 3 and 5). He was at that time the de facto spouse of the complainant’s mother. He was also charged with two other sexual offences involving the same complainant, one in 2003 (charge 2) and the other in 2004 (charge 4). The complainant was aged between 11 and 12 at the time of the offending.
The complainant first reported the alleged offending to police in 2007. The applicant was interviewed by police at that time, but no charges were laid due to what was then perceived to be a lack of sufficient evidence.
In July 2014, the Office of Public Prosecutions re-visited their file in respect of the complaints, in the context of considering other charges against the applicant for sexual offences involving incest of two other girls who were about 12 and 14 years old. Those complainants were daughters of a later de facto spouse of the applicant. In that context, a decision was made to lay the subject charges against the applicant. The trial of the other incest charges occurred in 2016. The applicant was acquitted of all those charges.
The applicant was tried and found guilty on charges 1 and 5 only. He was acquitted on charges 2, 3 and 4. He was sentenced on 7 April 2017 in accordance with the following table:
[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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AGLC
Carter (a pseudonym) v The Queen [2018] VSCA 88
Case
[2018] VSCA 88
Decision Date
CaseChat Overview and Summary
The appellant, identified as Carter, appealed against his sentence imposed by the County Court of Victoria. Carter had been found guilty of two charges of incest. The Crown had accepted that the appellant's intellectual disability was a mitigating factor, but argued that the offending warranted a mid-range sentence. Carter argued that the sentence was manifestly excessive and that it should be reduced. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.
The court was required to decide whether the sentencing judge had erred by classifying the offending as mid-range, and whether the sentence was manifestly excessive. The court considered whether the delay between the offending and the sentencing proceedings was relevant to the sentencing practices at the time of the offending. The court also considered whether the sentence was manifestly excessive.
The court found that there was no error in the sentencing judge's classification of the offending as mid-range. The court also found that the delay between the offending and sentencing did not affect the sentencing practices at the time of the offending. The court held that the sentence was not manifestly excessive and dismissed the appeal. The court found that the sentencing judge had appropriately taken into account all relevant factors, including the appellant's intellectual disability.