Carter v The Queen - [2020] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0023

STEVEN WILLIAM CARTER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2020
DATE OF JUDGMENT:	11 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 13
JUDGMENT APPEALED FROM:	DPP v Carter (Unreported, County Court of Victoria, Judge Quin, 15 November 2019)

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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Production of child pornography – Possessing child pornography – Failure to comply with reporting obligations under Sex Offenders Registration Act 2004 – Plea of guilty – Significant delay between arrest and sentencing – Applicant sentenced to 5 years’ imprisonment with non‑parole period of 3 years – Applicant in consensual sexual relationship with first complainant – First complainant aged 17 at time of offending – Second complainant aged 15 years and 11 months at time of offending – Images and videos taken with consent of complainants – Whether sentence manifestly excessive – ‘Lower level’ of objective gravity – Appeal allowed – Applicant resentenced to three years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S N Andrianakis	Victoria Legal Aid
For the Crown	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

WHELAN JA
PRIEST JA

WEINBERG JA:

On 28 October 2019, the applicant, Steven Carter, pleaded guilty in the County Court at Melbourne to the charges as set out in the table below. He was sentenced as follows:

Charge

Offence

Maximum

Sentence

Cumulation

1 Failure to comply with reporting obligations [s 46(1) Sex Offenders Registration Act 2004] 5 years 3 months’ imprisonment —

2 Produce Child Pornography [s 68(1) Crimes Act 1958] 10 years 2 years and 6 months’ imprisonment 2 years

3 Indecent act with a child under 16 [s 47(1) Crimes Act 1958] 10 years 3 years’ imprisonment Base

4 Possess child pornography [s 70(1) Crimes Act 1958] 10 years 6 months’ imprisonment —

Total Effective Sentence: 5 years

Non-Parole Period: 3 years

Pre-Sentence detention: 1001 days

Section 6AAA statement: 7 years’ imprisonment with a non-parole period of 5 years

Other orders:
Applicant sentenced as a serious sexual offender in regards to charges 2, 3 and 4 pursuant to s 6F of the Sentencing Act 1991.

He is to remain on the sex offenders register for life.

Forfeiture and forensic sample orders.

Charge	Offence	Maximum	Sentence	Cumulation
1	Failure to comply with reporting obligations [s 46(1) Sex Offenders Registration Act 2004]	5 years	3 months’ imprisonment	—
2	Produce Child Pornography [s 68(1) Crimes Act 1958]	10 years	2 years and 6 months’ imprisonment	2 years
3	Indecent act with a child under 16 [s 47(1) Crimes Act 1958]	10 years	3 years’ imprisonment	Base
4	Possess child pornography [s 70(1) Crimes Act 1958]	10 years	6 months’ imprisonment	—
Total Effective Sentence:	5 years
Non-Parole Period:	3 years
Pre-Sentence detention:	1001 days
Section 6AAA statement:	7 years’ imprisonment with a non-parole period of 5 years
Other orders:	Applicant sentenced as a serious sexual offender in regards to charges 2, 3 and 4 pursuant to s 6F of the Sentencing Act 1991. He is to remain on the sex offenders register for life. Forfeiture and forensic sample orders.

The applicant is out of time to bring an application for leave to appeal against sentence. The delay was not great and has been explained. The merits of the proposed appeal are such as to warrant the required extension of time in which to seek leave to appeal against sentence.

The applicant seeks leave to appeal against sentence on the following grounds:

Ground 1:The learned sentencing judge erred in placing reliance on inadmissible material in the Victim Impact Statement, in a manner that was unfairly prejudicial to the applicant.
Ground 2:The sentence imposed in respect of charges 2 and 3,…

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 Carter v The Queen

Details

AGLC: Carter v The Queen [2020] VSCA 13
Case: [2020] VSCA 13
Decision Date: 11 February 2020

CaseChat Overview and Summary

In the High Court of Australia, the case of Carter v The Queen was heard, involving the appellant, Carter, who was convicted of various offences including indecent acts with a child under 16, production of child pornography, possession of child pornography, and failure to comply with reporting obligations under the Sex Offenders Registration Act 2004. The appeal centred on the question of whether the sentence imposed on the appellant was manifestly excessive. The appellant had entered a guilty plea, and the sentence imposed was five years' imprisonment, with a non-parole period of three years. The case was argued on the basis that the sentence was excessive due to the lower level of objective gravity associated with the crimes, particularly given the ages of the complainants and the consensual nature of the relationships.

The central legal issue was whether the sentence of five years' imprisonment, with a non-parole period of three years, was manifestly excessive in light of the lower level of objective gravity of the crimes committed. The court had to consider the nature and circumstances of the offences, the age of the complainants, the consensual nature of the relationships, and the delay between the arrest and sentencing. The court needed to balance the need for punishment and deterrence with the need to ensure that the sentence was not manifestly excessive, given the specific facts of the case.

The High Court found that the sentence imposed was indeed manifestly excessive. The court recognised the lower level of objective gravity of the crimes due to the ages of the complainants and the consensual nature of the relationships. The court also took into account the significant delay between the arrest and the sentencing. As a result, the appeal was allowed, and the appellant was resentenced to three years' imprisonment, reflecting the lower level of objective gravity and the specific circumstances of the case.

The final orders of the court were that the appellant's conviction was upheld, but the sentence was quashed and replaced with a sentence of three years' imprisonment. This decision underscored the importance of considering the specific circumstances and the level of objective gravity in sentencing, particularly in cases involving offences against children.

Orders