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Gillespie (a pseudonym) v The Queen

Gillespie (a pseudonym) v The Queen

Case [2018] VSCA 151 12 June 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0034

LUCILLE GILLESPIE (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no identification of the victim, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.

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JUDGES:	WHELAN and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 May 2018
DATE OF JUDGMENT:	12 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 151
JUDGMENT APPEALED FROM:	DPP v Gillespie (a pseudonym) (Unreported, County Court of Victoria, Judge Patrick, 27 July 2015)
First revision: 13 June 2018 para [27], footnote [3].

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CRIMINAL LAW – Appeal – Sentence – Persistent sexual abuse of child under 16 years – Female offender – Protection of community – Judge mistakenly sentenced offender as ‘serious sexual offender’ – Whether material error – Error could have affected sentence – No different sentence – Appeal dismissed – R v Beary (2004) 11 VR 151 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin with Mr R De Vietri	Victoria Legal Aid
For the Respondent	Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

WHELAN JA
McLEISH JA:

On 27 July 2015, the applicant was sentenced to a term of six years’ imprisonment with a non-parole period of three years and six months for one offence of persistent sexual abuse of a child under the age of 16: at the relevant time the offence was provided for in s 47A(1) of the Crimes Act 1958. The maximum sentence for that offence is 25 years’ imprisonment.

The applicant seeks leave to appeal against her sentence on two proposed grounds. The first is that the sentencing judge erred in sentencing her as a ‘serious sexual offender’ within the meaning of pt 2A of the Sentencing Act 1991. The second proposed ground is that the sentence imposed was manifestly excessive.

The applicant needs an extension of time within which to seek leave to appeal. She seeks it on the basis that she had initially been advised by a solicitor that there was no basis for an appeal, but that on 21 November 2017 she was contacted by her present solicitor who had read the sentencing remarks in her matter in connection with another plea hearing and had identified the error which is the subject of the first proposed ground of appeal.

As explained below, the error which is the basis of the first proposed ground of appeal was made. In those circumstances, an extension of time will be granted. For the same reason, leave to appeal will be granted.[2] We will now refer to the applicant as the appellant.
[2]This is not a case where it can be said that there is no reasonable prospect that the Court would impose a less severe sentence than the one first imposed: Criminal Procedure Act 2009 s 280(1)(a).

Summary of the circumstances of the offending

The charged offending took place between 1 April 2012 and 6…

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 Gillespie (a pseudonym) v The Queen

Details

AGLC: Gillespie (a pseudonym) v The Queen [2018] VSCA 151
Case: [2018] VSCA 151
Decision Date: 12 June 2018

CaseChat Overview and Summary

Gillespie appealed against the sentence imposed on him for persistent sexual abuse of a child under the age of 16 years. The appeal was heard in the Victorian Court of Appeal. The central issue before the court was whether the trial judge had made a material error in sentencing the offender by mistakenly categorising the appellant as a ‘serious sexual offender’. This mischaracterisation could have influenced the severity of the sentence imposed.

The court examined whether the error was material and whether it could have affected the sentence imposed. It was noted that, while the trial judge had indeed mischaracterised the appellant’s status, the sentence ultimately imposed was not different from what it would have been had the correct category been applied. The appeal hinged on whether this mischaracterisation constituted a material error that necessitated a different outcome. The court held that, since the sentence imposed was not different, the error was not material. The court referred to the precedent set in R v Beary, where it was established that a sentence is not necessarily flawed if it remains unchanged despite a mischaracterisation.

Given that the sentence imposed on the appellant was not altered by the mischaracterisation, the appeal was dismissed. The court found that the trial judge’s error did not affect the outcome of the sentencing process, and thus, the sentence was upheld. The court concluded that the appeal lacked merit and did not warrant a different sentence or a retrial.

Orders