SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0062
| JESSE DEACON (A PSEUDONYM)[1] |
| v |
| THE QUEEN |
[1]To ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant and the complainant’s mother.
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| JUDGES: | KAYE and T FORREST JJA and TAYLOR AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 October 2018 |
| DATE OF JUDGMENT: | 12 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 257 First Revision: 20 February 2019 |
| JUDGMENT APPEALED FROM: | DPP v [Deacon] (Unreported, County Court of Victoria, Judge Stuart, 23 February 2018) |
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CRIMINAL LAW – Appeal against conviction – Applicant convicted of seven charges of sexual penetration of a child under 16 years – Convicted of two charges of indecent act with a child under 16 years – Whether judge erred in granting leave to cross-examine an unfavourable witness – Whether verdicts of the jury were unsafe and unsatisfactory – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Appeal against sentence – Pleaded not-guilty – Applicant sentenced to 17 years nine months’ imprisonment with a non-parole period of 13 years – Whether sentencing judge’s discretion miscarried – Whether judge treated lack of regard by applicant to consequences of offending and lack of insight and remorse as aggravating factors.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T F Danos | Victoria Legal Aid |
| For the Respondent | Mr C B Boyce SC and Ms D Karamicov | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA
TAYLOR AJA:
Following a trial in the County Court, the applicant was convicted of seven charges of sexual penetration of a child under 16 years, and two charges of indecent act with a child under 16 years. He was sentenced to a total effective term of 17 years and 9 months’ imprisonment with a non-parole period of 13 years. That sentence was comprised as follows:
| Charge on Indictment F13858802.2 | Offence | Maximum | Sentence | Cumulation |
| 1 | Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958] | 25 years [s 45(2) Crimes Act 1958] | 7 years | Base |
| 2 | Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958] | 25 years [s 45(2) Crimes Act 1958] | 7 years | 2 years |
| 3 | Sexual Penetration of a Child Under 16 (aged under 10 years) [s 45(1) Crimes Act 1958] | 25 years [s 45(2) Crimes Act 1958] | 7 years | 2 years |
| 4 | Indecent Act with Child Under 16 [47(1) Crimes Act 1958] | 10 years [s 47(1) Crimes Act 1958] | 18 months | 6 months |
| 5 | Sexual Penetration of a Child Under 16 (aged between 10 and 16 years) [s 45(1) Crimes Act 1958] | 15 years[2] [s 45(2) Crimes Act 1958] | 3 years 6 months | 18 months |
| 6 | Indecent Act with Child Under 16 [47(1) Crimes Act 1958] | 10 years [s 47(1) |
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- AGLC
- Deacon (a Pseudonym) v The Queen [2018] VSCA 257
- Case
- [2018] VSCA 257
- Decision Date
CaseChat Overview and Summary
The court found no error in the trial judge's decision to allow the cross-examination, asserting that the witness was indeed unfavourable and the cross-examination was crucial for a fair trial. Regarding the safety and satisfaction of the jury's verdicts, the court was satisfied that the evidence was sufficient to support the guilty verdicts. The sentencing aspect was also scrutinized, and the court held that the sentencing judge had correctly identified and treated the appellant's lack of remorse and insight as aggravating factors. The court concluded that the sentencing judge had exercised their discretion properly, and the sentence was not manifestly excessive.
Consequently, the appeal against both conviction and sentence was dismissed. The court determined that the trial judge had not erred in granting leave to cross-examine the unfavourable witness, and the jury's verdicts were safe and satisfactory. The sentencing process was deemed to have been conducted correctly, taking into account all relevant factors. As a result, the application for leave to appeal against both the conviction and sentence was refused.
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