Gaunt v The Queen - [2019] VSCA 241

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0068

AARON GAUNT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2019
DATE OF JUDGMENT:	29 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 241
JUDGMENT APPEALED FROM:	R v Gaunt (Unreported, County Court of Victoria, Judge Lacava, 19 April 2018)

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CRIMINAL LAW – Application for leave to appeal against sentence – Possess and transmit child pornography and drug trafficking offences – Proposed ground expressed as totality – Proposed ground concerned non-parole period – Ratio of non-parole period to head sentence invites scrutiny – Proposed ground arguable – Non-parole period justified by poor prospects of rehabilitation and moral culpability – Leave granted but appeal dismissed – Romero v The Queen (2011) 32 VR 486, Cummins (a pseudonym) v The Queen (2013) 40 VR 319 referred to.

CRIMINAL LAW – Sentencing – Sentenced as serious sex offender on Commonwealth offences – Serious offender provisions not applicable to Commonwealth offences – Order amended – Sentencing Act 1991 s 6F – Criminal Procedure Act 2009 s 325 – McKenzie v The Queen [2018] VSCA 34 applied.

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr C K Wareham	Valos Black & Associates
Respondent	Mr C T Carr	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA:

On 15 February 2018 the applicant pleaded guilty in the County Court to eleven charges on an indictment containing Commonwealth and State offences, and to four related summary charges. He was sentenced on 19 April 2018 to a total effective term of imprisonment of 4 years 8 months.[1] On 17 May 2018 the sentences on certain of the offences were amended under s 104A of the Sentencing Act 1991 so as to include a declaration that the applicant had been sentenced as a serious sexual offender.[2]
[1]R v Gaunt (Unreported, County Court of Victoria, Judge Lacava, 19 April 2018) (‘Reasons’).
[2][2018] VCC 910.

Pursuant to s 279 of the Criminal Procedure Act 2009 an application for leave to appeal against sentence is to be commenced by filing a notice of application for leave to appeal within 28 days after the day on which the person is sentenced or any extension of that period granted under s 313 of the Act. Section 313 empowers the Court of Appeal or the Registrar of Criminal Appeals to extend time, and provides that where the Registrar of Criminal Appeals refuses an application to extend the applicant is entitled to have the Court of Appeal determine the application.

By an application dated 1 April 2019 the applicant sought an extension of time within which to file an application for leave to appeal his sentence. The Registrar of Criminal Appeals refused the application. The applicant elected to have the application to extend time determined by the Court of Appeal.

The extension of time

Shortly prior to the hearing of the application to extend time, the solicitor for the respondent advised the…

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 Gaunt v The Queen

Details

AGLC: Gaunt v The Queen [2019] VSCA 241
Case: [2019] VSCA 241
Decision Date: 29 October 2019

CaseChat Overview and Summary

The case of Gaunt v The Queen involved the appellant, who had been convicted of possession and transmission of child pornography and drug trafficking offences. The appellant applied for leave to appeal against the sentence imposed, which included a non-parole period that the appellant considered excessive. The application was heard by the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue the court needed to address was whether the proposed ground of appeal, which was expressed in terms of the totality of the sentence, was arguable. The appellant contended that the ratio of the non-parole period to the head sentence warranted scrutiny, suggesting that the sentence was excessively punitive. The court had to determine whether the proposed ground of appeal was sufficiently arguable and whether the sentence was justified by the appellant’s prospects of rehabilitation and moral culpability.

The court found that the proposed ground of appeal was indeed arguable, as it invited scrutiny of the ratio of the non-parole period to the head sentence. However, the court concluded that the non-parole period was justified given the appellant's poor prospects of rehabilitation and high moral culpability. The court found that the sentence was proportionate and appropriate, taking into account the gravity of the offences committed. Consequently, while leave to appeal was granted, the appeal itself was dismissed. The court referred to precedents such as Romero v The Queen and Cummins (a pseudonym) v The Queen to support its reasoning.

The court also addressed an amendment to the sentencing order, clarifying that the serious offender provisions did not apply to the Commonwealth offences for which the appellant was sentenced. The court applied provisions from the Sentencing Act 1991 and the Criminal Procedure Act 2009 to amend the order accordingly, referencing McKenzie v The Queen in its reasoning. The final order included an amendment to the sentencing order to reflect the correct application of the law.

Orders