Duncan (A Pseudonym) v The Queen - [2014] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0082

MARK DUNCAN (A PSEUDONYM) [1]

Applicant

THE QUEEN

Respondent

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

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 September 2014
DATE OF JUDGMENT:	9 September 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 215
JUDGMENT APPEALED FROM:	DPP v Duncan (Unreported, County Court of Victoria, Judge Wilmoth, 11 April 2014)

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CRIMINAL LAW – Sentence – Indecent assault – Attempted indecent assault – Use a carriage service to transmit child pornography – Possession of child pornography – Confusing Crown opening leading to factual errors in sentencing – Sentences not in accordance with current sentencing practices – Crown concessions as to error – Application for leave to appeal granted – Appeal allowed – Applicant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms S Borg	Mr C Hyland, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction and background

The applicant seeks leave to appeal against sentences imposed upon him by a County Court judge on 11 April 2014. Following pleas of guilty to five charges of indecent assault, one charge of attempted indecent assault, one charge of using a carriage service to transmit child pornography and one charge of being in possession of child pornography, the applicant was sentenced by the judge as follows:

Charge on
Indictment
Offence

Maximum

Sentence

Cumulation

1. Indecent assault [s.44(1) of the Crimes Act 1958]
5 years’ imprisonment

[s.44(1) of the Crimes

Act 1958]

3 years’

imprisonment
Base

2. Indecent assault [s.44(1) of the Crimes Act 1958]
5 years’ imprisonment

[s.44(1) of the Crimes
Act 1958]

3 years’

imprisonment
12 months

3. Indecent assault [s.44(1) of the Crimes Act 1958]
5 years’ imprisonment

[s.44(1) of the Crimes
Act 1958]

3 years’

imprisonment
12 months

4. Indecent assault [s.44(1) of the Crimes Act 1958]
5 years’ imprisonment

[s.44(1) of the Crimes
Act 1958]

3 years’

imprisonment
12 months

5. Attempted indecent assault [s.44(1) of the Crimes Act 1958 and the common law]
5 years’ imprisonment

[s.472(2) of the Crimes
Act 1958 as in force at the relevant time]

2 years’

imprisonment
6 months

6. Indecent assault [s.44(1) of the Crimes Act 1958]
5 years’ imprisonment

[s.44(1) of the Crimes
Act 1958]

3 years’

imprisonment
12 months

7. Use a carriage service for child pornography material [s.474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth.)]
15 years’ imprisonment

[s.474.19(1) of the

Criminal Code Act

1995 (Cth)]

12 months’

imprisonment

—

8. Possession of child pornography [s.70(1) of the Crimes Act 1958]
5 years’ imprisonment

[s.70(1) of the Crimes
Act 1958]

2 years’

imprisonment
6 months

Total Effective Sentence (combined):
8 years’ 3 months’ imprisonment –

3 months of…

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 Duncan (A Pseudonym) v The Queen

Details

AGLC: Duncan (a Pseudonym) v The Queen [2014] VSCA 215
Case: [2014] VSCA 215
Decision Date: 9 September 2014

CaseChat Overview and Summary

In the case of Duncan v The Queen, the applicant, identified under the pseudonym "Duncan", appealed against his sentence for various offences including indecent assault, attempted indecent assault, and using a carriage service to transmit and possess child pornography. The appeal was heard and determined in the High Court of Australia. Duncan's appeal was grounded on the argument that the Crown's opening during sentencing led to factual errors, resulting in sentences that were not consistent with contemporary sentencing practices. The court acknowledged that the Crown had conceded the presence of these errors, which was pivotal to Duncan's application for leave to appeal.

The legal issues central to this appeal revolved around the accuracy of the facts upon which the sentencing was based and whether these sentences aligned with the prevailing sentencing principles and practices. Duncan contended that the Crown's misleading opening created a factual basis that skewed the sentencing outcomes. Additionally, he argued that the sentences imposed did not reflect the current understanding and application of sentencing laws and principles. The High Court was tasked with determining whether the trial judge's reliance on these potentially flawed facts warranted a resentencing.

In its judgment, the High Court found that the trial judge's reliance on the Crown's potentially misleading opening did indeed lead to factual inaccuracies in the sentencing process. The court concluded that these inaccuracies, compounded by the divergence from contemporary sentencing practices, necessitated a resentencing. The Crown's concession regarding the factual errors further supported the need for a correction in the sentencing. Consequently, the High Court allowed Duncan's appeal and remitted the matter to the trial court for resentencing. The court's decision underscored the importance of accurate and legally sound sentencing processes.

Orders