Day (a pseudonym) v The Queen - [2022] VSCA 73

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0190

SHANE GILBERT DAY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	21 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 73
JUDGMENT APPEALED FROM:	[2021] VCC 1999 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Two charges of indecent assault, one charge of gross indecency with a person under 16 – Offences occurred in late 1980s – Total effective sentence 3 years, 5 months’ imprisonment, non-parole period 2 years – Whether judge erred in not taking into account applicant’s apology to complainant in pretext call as demonstrating remorse – Whether sentence manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

Introduction and summary

On 6 October 2021, a County Court jury found the applicant guilty of the charges set out in the table below and, on 6 December 2021, a County Court judge sentenced him in accordance with that table:[2]
[2]DPP v Day (a pseudonym) [2021] VCC 1999 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

4 Indecent assault (Crimes Act 1958 s 44(1)) 5 years 2 years, 9 months Base

5 Gross indecency with a person under 16 (Crimes Act s 50(1)) 2 years 1 year, 4 months 5 months

6 Indecent assault 5 years 2 years, 9 months 3 months

Total effective sentence 3 years, 5 months’ imprisonment

Non-parole period 2 years

Other relevant orders Sentenced as a serious sexual offender for charge 6; sex offender registration for 15 years

The offences involved the same complainant, the applicant’s stepdaughter. The jury found the applicant not guilty of three additional charges of indecent assault (charges 1 to 3), which also concerned the same complainant.

The applicant now seeks leave to appeal on the following grounds:[3]
[3]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.

1 In all the circumstances, the sentence on each count imposed was:
(a) manifestly excessive, and
(b)… productive of a total effective sentence and non-parole period that is manifestly excessive.

2The applicant was entitled to have his apology to the complainant, and acknowledgement of responsibility taken into account in his favour.

For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

The complainant’s parents separated in approximately 1982, when she was about 5 years of age. She had two brothers. Shortly afterwards, the applicant commenced a relationship with the complainant’s mother. The applicant and the complainant’s mother married in 1983, had two children together (Terri and Felix),[4] and separated in approximately 1986. They divorced in 1994.
[4]Terri and Felix are pseudonyms.

The complainant was, to the applicant’s knowledge, extremely shy and introverted and…

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 Day (a pseudonym) v The Queen

Details

AGLC: Day (a pseudonym) v The Queen [2022] VSCA 73
Case: [2022] VSCA 73
Decision Date: 21 April 2022

CaseChat Overview and Summary

The applicant, Day (a pseudonym), appealed against his sentence for two charges of indecent assault and one charge of gross indecency with a person under 16, which occurred in the late 1980s. Day was sentenced to a total effective period of imprisonment of 3 years and 5 months, with a non-parole period of 2 years. Day argued that the judge erred in not considering his apology to the complainant during a pretext call as evidence of remorse and that the sentence was manifestly excessive. The High Court of Australia was asked to consider these arguments.

The court examined whether the judge's failure to consider Day's apology constituted an error and whether the sentence was manifestly excessive. In addressing the first issue, the court noted that while the judge was entitled to consider various factors in sentencing, the judge did not err in not taking the pretext call apology into account as evidence of remorse. The court held that the judge was entitled to consider the circumstances of the offence and the applicant's character, including any evidence of remorse, but was not obliged to accept the pretext call apology as evidence of remorse. Regarding the second issue, the court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for deterrence and rehabilitation.

The court concluded that the judge did not err in not considering Day's apology during the pretext call as evidence of remorse, and the sentence was not manifestly excessive. Consequently, the High Court refused leave to appeal. The applicant's appeal was dismissed, and the original sentence stood.

Orders