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Crouch (a pseudonym) v The Queen

Crouch (a pseudonym) v The Queen

Case [2019] VSCA 30 22 February 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0113

JUSTIN CROUCH (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of 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:	KYROU and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2019
DATE OF JUDGMENT:	22 February 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 30
JUDGMENT APPEALED FROM:	DPP v Crouch (Unreported, County Court of Victoria, Judge Dean, 16 May 2018)

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CRIMINAL LAW – Appeal – Sentence – Three representative charges of indecent act with child under 16, one representative charge of incest in respect of one complainant, and two representative charges of indecent act with child under 16 in respect of another complainant – Offending extended over three years – First complainant was appellant’s step-daughter, aged between 9–11 years during period of offending – Second complainant was first complainant’s friend, aged between 8–11 years during period of offending – Appellant sentenced to total effective sentence of 10 years and 3 months’ imprisonment with non-parole period of 7 years – Whether judge misapplied principles relating to sentencing for representative charges – Whether judge failed to take into account interval of 23 years between offending and sentence during which appellant did not reoffend – Whether individual sentences, orders for cumulation and non-parole period manifestly excessive – Appeal dismissed – Principles relating to sentencing for representative charges discussed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hughan	Docherty Legal
For the Respondent	Mr J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
WEINBERG JA:

Introduction and summary

On 9 May 2018, the appellant pleaded guilty to the charges set out in the following table and, on 16 May 2018, he was sentenced as set out in that table.[2]
[2]DPP v Crouch (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 16 May 2018) (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] 10 years 3 years 6 months

2 Indecent act with a child under 16 10 years 4 years 9 months

3 Indecent act with a child under 16 10 years 4 years 9 months

4 Incest [Crimes Act s 44(1)] 20 years 7 years Base

5 Indecent act with a child under 16 10 years 2 years 6 months

6 Indecent act with a child under 16 10 years 2 years 9 months

Total Effective Sentence: 10 years, 3 months

Non-Parole Period: 7 years

Pre-Sentence Detention Declaration: 407 days

Section 6AAA Statement: 12 years with non-parole period of 9 years

Other Orders: Pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is life

All of the charges are representative charges. Pursuant to pt 2A of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender…

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 Crouch (a pseudonym) v The Queen

Details

AGLC: Crouch (a pseudonym) v The Queen [2019] VSCA 30
Case: [2019] VSCA 30
Decision Date: 22 February 2019

CaseChat Overview and Summary

The case of Crouch v The Queen involved an appeal against the severity of a sentence imposed on the appellant, who was convicted of multiple charges of indecent acts with children under the age of 16, as well as one charge of incest. The appellant's step-daughter, aged between 9 and 11 years during the period of offending, was the first complainant, and her friend, aged between 8 and 11 years during the same period, was the second complainant. The appellant was sentenced to a total effective sentence of 10 years and 3 months' imprisonment, with a non-parole period of 7 years. The appellant argued that the judge had misapplied the principles relating to the sentencing of representative charges, failed to consider the 23-year interval between the offending and the sentencing during which the appellant did not reoffend, and that the individual sentences, orders for cumulation, and the non-parole period were manifestly excessive.

The legal issues in the appeal were whether the judge had correctly applied the principles for sentencing in relation to the representative charges, whether the judge had failed to consider the 23-year interval between the offending and the sentencing, and whether the sentences, orders for cumulation, and the non-parole period were manifestly excessive. The court examined the principles for sentencing for representative charges, considering the cumulative effect of the offending and the nature of the relationship between the offender and the victim. The court also considered the 23-year interval between the offending and the sentencing, and whether this was a mitigating factor that the judge should have taken into account.

The court found that the judge had correctly applied the principles for sentencing in relation to the representative charges, taking into account the cumulative effect of the offending and the nature of the relationship between the offender and the victim. The court also found that the judge had considered the 23-year interval between the offending and the sentencing, and had given appropriate weight to this as a mitigating factor. The court found that the sentences, orders for cumulation, and the non-parole period were not manifestly excessive, and that the judge had properly exercised his discretion in imposing the sentence. The appeal was dismissed.

The court did not make any orders altering the sentence imposed on the appellant.

Orders