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E D v The Queen

E D v The Queen

Case [2011] VSCA 397 30 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0123
ED	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and HARPER JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 July 2011
DATE OF JUDGMENT:	30 November 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 397
JUDGMENT APPEALED FROM:	R v [ED] (Unreported, County Court of Victoria, Judge Lewitan, 8 April 2010).

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CRIMINAL LAW – Application for leave to appeal sentence – Whether sentence was manifestly excessive – Comparable cases as a guide to the ‘range’ – Principles of sentencing in child sex offences – Total effective sentence of nine and a half years’ imprisonment with non-parole period of seven and a half years not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J D Williams	Victoria Legal Aid
For the Crown	Mr A J Grant	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

I agree for the reasons Robson AJA has given that the appeal should be dismissed.

HARPER JA:

I agree with Robson AJA.

ROBSON AJA:

The appellant pleaded guilty in the County Court to two counts. Count 1 alleged that the appellant maintained a sexual relationship with a child under 16.[1] The victim of this offence was the appellant’s stepdaughter. The offending was particularised in the presentment as follows:
[1]s 47A Crimes Act 1958.

… On at least three occasions the applicant took part in one or more of the following acts with the complainant which consisted of:
a)        the kissing on the mouth of the complainant;
b)        the touching of the vagina of the complainant with his hand;
c)        the touching of the vagina of the complainant with his penis;
d)        the introduction of his penis into the vagina of the complainant;
e)        the introduction of his fingers into the vagina of the complainant; and
f)        the touching of the vagina of the complainant with his tongue.

Count 2 alleged that the appellant knowingly possessed child pornography. The appellant pleaded guilty to both counts.

The appellant admitted nine previous convictions from six court appearances. None of these prior convictions related to sex offences or offences against the person. The appellant had not previously received a sentence of imprisonment.

The appellant was sentenced as follows:

Count on Presentment

Offence

Maximum penalty

Sentence

Cumulation

1.

Maintain sexual relationship with child U16, [s 47A Crimes Act1958]

25 years

9 years

Base

2.

Possess child pornography, [s 70 Crimes Act1958]

5 years

9 months

6 months cumulative

Total Effective Sentence:

9½ years

Non parole period:

7½ years

Pre-sentence detention declared:

22 days

6AAA Statement: The learned trial judge stated that the sentence she would have imposed if the appellant had been convicted of these offences after trial would have been 12 years on Count 1 and 12 months on Count 2, with the appellant becoming eligible for parole after serving 10 years of that sentence.

The appellant sought leave to appeal against sentence on the grounds:

1that…

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 E D v The Queen

Details

AGLC: E D v The Queen [2011] VSCA 397
Case: [2011] VSCA 397
Decision Date: 30 November 2011

CaseChat Overview and Summary

In the case of E D v The Queen, the appellant contested the severity of his sentence, which was imposed following his conviction for multiple offences related to child sexual abuse. The sentence was nine and a half years’ imprisonment, with a non-parole period of seven and a half years. The matter was before the court to determine whether the sentence was manifestly excessive. The court was tasked with considering the principles of sentencing in child sex offences, particularly in light of comparable cases, to ascertain if the sentence imposed was within an acceptable range.

The legal issues central to the case revolved around the principles that guide sentencing for child sex offences, and whether the sentence met the threshold of being manifestly excessive. The court had to evaluate the sentence in the context of similar cases, ensuring that it adhered to the established sentencing guidelines and did not deviate in a manner that could be deemed disproportionate. This involved a thorough examination of the nature and gravity of the crimes committed, the appellant's culpability, and the necessity of deterrence and denunciation.

The court found that the sentence imposed, which was nine and a half years’ imprisonment with a non-parole period of seven and a half years, did not exceed the acceptable range for similar offences. The principles of sentencing in child sex offences were considered, alongside the comparative analysis of other cases. The court concluded that the sentence was not manifestly excessive, taking into account the appellant’s culpability, the need for deterrence, and the protection of the community. Consequently, the appeal against the sentence was dismissed.

Orders