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Deacon (a Pseudonym) v The Queen

Deacon (a Pseudonym) v The Queen

Case [2018] VSCA 257 12 October 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0062

JESSE DEACON (A PSEUDONYM)[1]

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) Crimes Act

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 Deacon (a Pseudonym) v The Queen

Details

AGLC: Deacon (a Pseudonym) v The Queen [2018] VSCA 257
Case: [2018] VSCA 257
Decision Date: 12 October 2018

CaseChat Overview and Summary

Deacon, appealing against his conviction and sentence, was found guilty on nine charges relating to sexual offences against a child. The trial judge granted leave for the defence to cross-examine an unfavourable witness, a decision the appellant now challenges as erroneous. The appellant also claims that the jury's verdicts were unsafe and unsatisfactory. The central issue before the court was whether the trial judge had erred in permitting the cross-examination of the unfavourable witness and whether the verdicts were indeed unsafe and unsatisfactory. Additionally, the court examined whether the sentencing judge had misapplied their discretion in sentencing the appellant to 17 years and nine months with a non-parole period of 13 years, particularly concerning the weight given to the appellant's lack of remorse and insight.

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.

Orders