Cole (a pseudonym) v The Queen

[2015] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0276

DYLAN ELTON COLE ( a Pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGES:	ASHLEY and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2015
DATE OF JUDGMENT:	20 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 44
JUDGMENT APPEALED FROM:	DPP v [Cole] (Unreported, County Court of Victoria, Judge Meredith, 7 November 2014)

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CRIMINAL LAW – Sentence – Indecent act with a child under 16 – Delay – Sentence of 20 months’ imprisonment with a non-parole period of 12 months – Sentence manifestly excessive – Appeal allowed – Community correction order substituted.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms F Todd	Robert Stary Lawyers
For the Crown	Mr B Kissane SC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

THE COURT:

Introduction

1. Pursuant to leave granted by Priest JA on 26 February 2015, this appeal is brought against a sentence of one (1) year and eight (8) months’ imprisonment, with a non-parole period of 12 months, imposed by a judge of the County Court on 7 November 2014.

1. For the reasons that follow, we would allow the appeal and sentence the appellant to a community correction order (‘CCO’) in the terms we will later set out.

   Sentence and ground of appeal

2. The impugned sentence was imposed following a contested trial.  On 27 October 2014, a jury found the appellant guilty of three charges of indecent act with a child under 16[2] (charges 2, 3 and 4).[3]  The trial judge sentenced him to be imprisoned for 12 months on each of charges 2 and 4, and for 10 months on charge 3.[4]  Three months of the sentence on charge 3, and five months of the sentence on charge 4, were ordered to be served cumulatively with the sentence on charge 2.  The total effective sentence was thus one (1) year and eight (8) months’ imprisonment, upon which the judge fixed a non-parole period of 12 months

   [2]Crimes Act 1958, s 47(1). The maximum penalty is imprisonment for 10 years.

   [3]Charge 1 on the indictment was also a charge of indecent act with a child under 16.  The jury acquitted the appellant on that charge.

   [4]On charge 4, the appellant was, pursuant to s 6E of the Sentencing Act 1991, sentenced as a serious sexual offender.

3. The appellant relies on a single ground which asserts that the sentence offended the principle of totality and is manifestly excessive  The ground is expressed as follows:

   1.   The individual sentences, the total effective sentence and the non-parole period are manifestly excessive and offend the principle of totality, particularly in view of the following matters:

   (a) the delay in commencing the proceedings;

   (b) the consequent extended period of uncertainty that was experienced by the…