[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.
CRIMINAL LAW – Appeal – Sentence – Sexual offences against children – Course of conduct charges – Incest, sexual penetration of 17 year old child under care (3 charges), attempted rape – Victim was stepdaughter aged 12–18 – Sentenced to 15 years’ imprisonment with non-parole period of 8 years – Whether manifestly excessive – Different forms of penetration over same period – Breaks in period of offending – Application for leave to appeal refused – DPP v Dalgliesh [2016] VSCA 148, McCray v The Queen [2017] VSCA 340, referred to – Criminal Procedure Act 2009 sch 1, cl 4A.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr P J Smallwood with Mr J Connelly
Furstenberg Law
For the Respondent
Mr B F Kissane QC
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P KYROU JA:
Introduction and summary
On 16 December 2016, the applicant pleaded guilty to the charges set out in the following table. On 17 February 2017, he was sentenced as set out in that table.[2]
Charge 1 was a course of conduct charge,[3] which involved incest committed in the period from 13 June 2008 until 24 April 2010 when the complainant was aged between 12 and 13 years and the applicant was aged between 35 and 37. During that period, the complainant was the applicant’s stepdaughter.
[3]As discussed at [64] below, a course of conduct charge is ‘a charge for a relevant offence that involves more than one incident of the offence’. See Criminal Procedure Act 2009 sch 1, cl 4A.
Charges 2–4 were also course of conduct charges, which involved different forms of penile penetration — vaginal (charge 2), oral (charge 3) and anal (charge 4) — committed in the period from 13 June 2013 until 23 February 2014. During…
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 Crawford (a pseudonym) v The Queen
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AGLC
Crawford (a pseudonym) v The Queen [2018] VSCA 113
Case
[2018] VSCA 113
Decision Date
CaseChat Overview and Summary
In this matter, the appellant, referred to as Crawford, appealed against his sentence for multiple sexual offences against his stepdaughter, who was aged between 12 and 18 years at the time of the offending. The case was heard in the Court of Appeal, with the primary judge's decision being challenged on the grounds that the sentence was manifestly excessive. The appellant had been convicted of incest, sexual penetration of a 17-year-old child under care (on three separate charges), and attempted rape. The sentence imposed was 15 years' imprisonment, with a non-parole period of 8 years.
The legal issues before the court were whether the sentence was manifestly excessive and whether the appellant's offending constituted a course of conduct. The court considered the nature and severity of the offences, the appellant's history, and the impact on the victim. The court also examined whether the different forms of penetration over the same period and the breaks in the period of offending were relevant to the sentencing decision.
The court found that the sentence was not manifestly excessive, as the offences were severe and had a significant impact on the victim. The court also found that the offending constituted a course of conduct, despite the breaks in the period of offending. The court noted that the appellant's offending spanned several years and involved multiple forms of sexual abuse against his stepdaughter. The application for leave to appeal was refused. The court referred to relevant case law, including DPP v Dalgliesh [2016] VSCA 148 and McCray v The Queen [2017] VSCA 340, and considered the provisions of the Criminal Procedure Act 2009 sch 1, cl 4A in reaching its decision.
The final orders of the court were that the application for leave to appeal was refused, and the original sentence imposed by the primary judge was upheld.