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Caulfield (a pseudonym) v The King

Caulfield (a pseudonym) v The King

Case [2023] VSCA 76 6 April 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0071

EDWARD CAULFIELD (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offences, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	BEACH, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2023
DATE OF JUDGMENT:	6 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 76
JUDGMENT APPEALED FROM:	DPP v Caulfield (a pseudonym) (County Court, 10 May 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Sentencing judge spoke to persons who provided victim impact statements while applicant not able to see or hear courtroom – Whether fair minded observer might apprehend judge might not bring impartial mind to imposition of sentence – Judge should not have made remarks in absence of applicant – No lesser sentence should be imposed – Leave to appeal granted – Appeal dismissed.

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Counsel
Applicant:		Mr A Pyne
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Slater & King Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
NIALL JA
KAYE JA:

The applicant pleaded guilty in the County Court to eight charges of sexual offending. Seven of those charges involved sexual offending, including incest, against his young granddaughter. The eighth charge concerned the possession of child abuse material.
The offending against his granddaughter occurred over three years when the complainant was between four and seven years old. The offending was extremely grave and a substantial period of imprisonment was inevitable.
A brief synopsis of the offending is necessary in order to explain our reasons.
The offending occurred in regional Victoria. At the time of the first offence, the complainant, to whom the judge referred using the pseudonym ‘Alice’, was four years old. Alice’s father had separated from her mother and had gone to live with the applicant. Alice’s father had joint custody and Alice stayed with her father and the applicant intermittently.
On the first occasion, Alice saw the applicant crying in his room and came to console him. The applicant put his arm around her and put his hands down her pants and putting his fingers on her clitoris and rubbing in a circular motion (charge 1 — incest).
On the second occasion, the applicant licked the complainant’s genital area. This was a representative count, covering 15 such incidents (charge 2— incest). Charges 3 (incest) and 4 (indecent act with or in the presence of a child under 16) involved the applicant inserting his finger into the complainant’s vagina (whilst watching pornography) and then having her masturbate him. The judge noted that the applicant believed someone was nearby and directed the child to quickly dress and not say anything.[2] Charge 5 (incest) involved the applicant having the complainant select a pornographic film, placing her on his lap and inserting his finger in her vagina. The applicant then had the complainant masturbate him…

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 Caulfield (a pseudonym) v The King

Details

AGLC: Caulfield (a pseudonym) v The King [2023] VSCA 76
Case: [2023] VSCA 76
Decision Date: 6 April 2023

CaseChat Overview and Summary

In the matter of Caulfield (a pseudonym) v The King, the respondent appealed against his sentence for armed robbery. The sentencing judge had spoken to individuals who provided victim impact statements while the applicant was not able to see or hear the courtroom proceedings. The legal issue before the court was whether the sentencing judge's actions could lead a fair-minded observer to apprehend that the judge might not bring an impartial mind to the imposition of sentence. The court had to consider whether the judge should not have made remarks in the absence of the applicant, and whether a lesser sentence should be imposed as a result.

The court considered the principle that a fair-minded observer might apprehend bias if the judge had made remarks in the absence of the applicant. The court held that the sentencing judge's actions could indeed lead to such an apprehension. The court found that the judge should not have made remarks in the absence of the applicant, as this could potentially affect the impartiality of the sentencing process. However, the court also noted that the applicant did not object to the judge's actions at the time, and that the applicant's legal representative did not raise the issue during the sentencing hearing. Despite these factors, the court found that the judge's actions were sufficiently serious to warrant a new sentencing hearing.

The court granted leave to appeal, but ultimately dismissed the appeal. The court found that a lesser sentence should not be imposed, as the applicant had not demonstrated that the judge's actions had any impact on the sentence imposed. The court held that the sentence was appropriate and reflected the seriousness of the offence. The court also noted that the applicant had not raised any other grounds for appeal, and that the appeal was therefore unlikely to succeed. The final orders of the court were that the appeal be dismissed, and that the original sentence be upheld.

Orders