Gadd v The Queen - [2012] VSCA 267

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0210

JAHVID ENOCH GADD
	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P and TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2012
DATE OF JUDGMENT:	26 October 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 267

---

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 – Sentenced to three years’ imprisonment, with non-parole period 16 months – Whether adequate weight given to applicant’s youth – Whether excessive weight given to prior convictions for violence – Whether sentence reasonably open – Offending involved some coercion – Not manifestly excessive – Application for leave to appeal refused – Pantazisv The Queen [2012] VSCA 160 applied – No point of principle

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A J Gray	Tait Lawyers
For the Respondent	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

On 29 August 2012, the applicant pleaded guilty to one charge of sexual penetration of a child under 16. Following a plea, the applicant was sentenced to three years’ imprisonment on that charge. A non‑parole period of 16 months was fixed.

The applicant now seeks leave to appeal against sentence. In my opinion, leave to appeal must be refused. My reasons are as follows.

The application has been brought on urgently before a bench of two, rather than being considered by a single judge in the usual way. That has occurred because there was a lengthy period of pre‑sentence detention and the applicant’s earliest date of eligibility for release on parole is 23 November 2012. Counsel and the Court of Appeal registry are to be commended for ensuring that the matter was brought on as early as practicable.

I wish to say at the outset that the applicant was represented with great skill and care by counsel, both on the plea and in argument today. All of the matters on which reliance could properly be placed were raised for consideration by the sentencing judge, and their significance has again been emphasised for this Court. It is of particular assistance to this Court to have trial counsel appearing on an application for leave to appeal, because he is in a position to inform us from his own knowledge as to exactly what went on at first instance and, of course, to draw on the arguments which he made on the plea in support of the application for leave to appeal.

The circumstances of the offending are set out in the Crown’s written case. They are not in dispute. The relevant paragraphs reflect the Crown summary presented to the sentencing judge, on the basis of which the plea was conducted:

Javid Enoch Gadd (the ‘applicant’) was 20 years of age at the time of the offending.
The complainant (‘T’) was 14 years and 8 months at the time of the offence.
On 8 July 2011, T travelled by bus to Mildura. Travelling with her was her…

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 Gadd v The Queen

Details

AGLC: Gadd v The Queen [2012] VSCA 267
Case: [2012] VSCA 267
Decision Date: 26 October 2012

CaseChat Overview and Summary

In Gadd v The Queen, the appellant, Gadd, sought to appeal against a sentence imposed by the County Court for sexual penetration of a child under 16 years of age. The sentence was three years’ imprisonment, with a non-parole period of 16 months. Gadd argued that the trial judge did not adequately consider his youth and gave excessive weight to his prior convictions for violence. The Court of Appeal had to determine whether the sentence was reasonably open, given the trial judge’s consideration of all relevant factors.

The legal issues centred around whether the trial judge appropriately balanced the factors in aggravation and mitigation, particularly whether adequate weight was given to Gadd’s youth and whether excessive weight was given to his prior convictions. The Court of Appeal had to assess whether the sentence was manifestly excessive and whether the trial judge overlooked any relevant mitigating factors.

The Court of Appeal found that the trial judge did give proper consideration to Gadd’s youth, but the key factor was that the offending involved some degree of coercion. The Court held that the sentence was not manifestly excessive and was reasonably open on the facts of the case. The Court applied the principles from Pantazis v The Queen, noting that there was no point of principle that required the Court to interfere with the trial judge’s sentence. The application for leave to appeal was therefore refused.

Orders