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Grantley (a pseudonym) v The Queen

Grantley (a pseudonym) v The Queen

Case [2018] VSCA 112 9 May 2018

Appeal

Sentence

Incest

Indecent act with a child under 16 years

Manifestly excessive sentence

Changed sentencing practices

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0219

RICHARD GRANTLEY (a pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGE:	MAXWELL P and KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2018
DATE OF JUDGMENT:	9 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 112
JUDGMENT APPEALED FROM:	[2016] VCC 1538 (Judge Sexton)

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CRIMINAL LAW – Appeal – Sentence – Incest (representative charge and single count) – Indecent act with a child under 16 years – Incest sentences 6y 6m, 5y 6m – Total effective sentence 9y – Non-parole period 7y – Whether manifestly excessive – Changed sentencing practices – DPP v Dalgliesh [2016] VSCA 148, DPP v Dalgliesh (2017) 349 ALR 37, DPP v Dalgliesh [2017] VSCA 360, Carter v The Queen [2018] VSCA 88 followed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood with Mr J Connolly	Paul Vale Criminal Law
For the Respondent	Mr B J Kissane QC	Mr John Cain, Solicitor for Public Prosecutions

MAXWELL P
KYROU JA:

The appellant (who is referred to by the pseudonym Richard Grantley[2]) pleaded guilty to one representative charge of incest, contrary to s 44(1) of the Crimes Act 1958 (the ‘Act’); a further charge of incest; and one charge of indecent act with a child under 16 years, contrary to s 47(1) of the Act.[3] He was sentenced as follows:
[2]As the leave judge did, we will adopt the pseudonyms used by the judge below in her sentencing remarks: DPP v Grantley (a pseudonym) [2016] VCC 1538 [1] (‘Sentencing reasons’). The judge called the older complainant Libby, the second complainant Ella, their next youngest sister Freda and the youngest sister Tara. The judge called the mother of the girls Karen Chester.
[3]Sections 44(1) and 47(1) were later repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016. See now pt 8B of the Act including ss 50C (‘sexual penetration of a child or lineal descendant’) and 50E (‘sexual penetration of a step-child’).

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Incest (representative charge) 25y 6y 6m Base

2 Incest 25y 5y 6m 2y

3 Indecent act with a child under 16 years 10y 12m 6m

Total Effective Sentence:

9y

Non-Parole Period:

7y

Pre-Sentence detention declaration:

31 days

6AAA Statement:

2 14y with non-parole period of 12y

Other relevant orders: Sentenced as a serious sexual offender on charge 3. Forensic Sample Order pursuant to s 464ZF of the Act. Report pursuant to the Sex Offenders Registration Act 2004 for life.

Tate JA granted leave to appeal on the sole ground that the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period were all manifestly excessive. As her Honour recorded in her reasons,[4] the ground…

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 Grantley (a pseudonym) v The Queen

Details

AGLC: Richard Grantley (a pseudonym)[1] v The Queen [2018] VSCA 112
Case: [2018] VSCA 112
Decision Date: 9 May 2018

CaseChat Overview and Summary

Grantley, a pseudonym used to protect the identity of the appellant, has appealed against the sentence imposed by the Supreme Court of Victoria for a conviction of incestuous behaviour involving a child under the age of sixteen. The nature of the offence and the sentence has brought forth the issue of whether the punishment was excessively harsh under the circumstances. The appeal was heard by the Court of Appeal in Victoria, which was tasked with evaluating the sentence's appropriateness.

The central legal issue before the court was whether the total effective sentence of nine years, with a non-parole period of seven years, was manifestly excessive. The court examined the precedent set by cases such as DPP v Dalgliesh and Carter v The Queen, which discuss the evolution of sentencing practices and the factors that should be considered in determining the severity of a sentence. The appellant's legal team argued that the sentence was disproportionate, given the evolving sentencing practices in cases involving incest and the specific circumstances of this case.

The Court of Appeal considered the appellant's arguments and the relevant legal precedents. They concluded that the sentence was not manifestly excessive and did not exceed the bounds of what could be considered a reasonable punishment for the offence. The court found that the trial judge had appropriately considered the relevant factors and had exercised their discretion within the bounds set by the law. The appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal be dismissed and the original sentence of nine years with a non-parole period of seven years be maintained. The court's decision emphasised the importance of considering the evolving sentencing practices and the need to balance the severity of the offence with the individual circumstances of each case.

Orders