Greene (a pseudonym) v The King - [2024] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0113

SHANE GREENE (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2024
DATE OF JUDGMENT:	8 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 226
JUDGMENT APPEALED FROM:	DPP v Greene (a pseudonym) [2023] VCC 942 (Judge Ellis)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

CRIMINAL LAW – Sentence – Leave to appeal – 11 charges relating to sexual offending against child under 16 years – One charge of using carriage service for sexual activity with person under 16 years – One complainant aged 7 to 14 during period of offending – Other complainant aged 12 to 13 years – Complainants related to applicant’s then girlfriend – Total effective sentence of 13 years and 8 months’ imprisonment with non-parole period of 9 years and 2 months – Whether sentence manifestly excessive – Leave to appeal granted – Applicant re-sentenced.

Criminal Procedure Act 2009, s 280(1)(b); Sentencing Act 1991, s 5(2)(b).

Clarkson v The Queen (2011) 32 VR 361 ; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v McKenzie [2018] VCC 120; Osman v The Queen [2021] VSCA 176; DPP v Hester (a pseudonym) [2022] VCC 121; Lai v The King [2023] VSCA 151.

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Counsel
Applicant:		Ms E Clark
Respondent:		Ms J Warren
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

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BOYCE JA
ORR JA:

On 27 February 2023, the applicant was convicted by a jury after a trial in the County Court of 11 offences contained on indictment M11089304.1A (the ‘State trial indictment’). All offences involved the same complainant. In her reasons for sentence,[1] the sentencing judge gave this complainant the pseudonym ‘Claire Rogers’. ‘Claire’ was born in February 2004. The applicant subsequently pleaded guilty to a single charge of using a carriage service for sexual activity with a person under 16 years on indictment M11089304.1B (the ‘Commonwealth plea indictment’). That offence involved a different complainant. This complainant was the first complainant’s older sister. The sentencing judge gave this complainant the pseudonym ‘Anna Rogers’. ‘Anna’ was born in May 2001.
[1]DPP v Greene (a pseudonym) [2023] VCC 942, [1] (‘Sentencing reasons’).
Following a plea hearing, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M11089304.1A
1	Indecent act with a child under the age of 16[2]	10 years	12 months	3 months
2	Sexual penetration of a child under the age of 16[3]	25 years	6 years and 6 months	2 years and 6 months
3	Indecent act with a child under the age of 16[4]	10 years	6 months	–
4	Indecent act with a child under the age of 16[5]	10 years	9 months	4 months
5	Indecent act with a…

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 Greene (a pseudonym) v The King

Details

AGLC: Greene (a pseudonym) v The King [2024] VSCA 226
Case: [2024] VSCA 226
Decision Date: 8 October 2024

CaseChat Overview and Summary

The case of Greene (a pseudonym) v The King involved the appellant, Greene, who was convicted of eleven charges related to sexual offences against a child under the age of 16 and one charge of using a carriage service for sexual activity with a person under 16. The complainant in these offences was aged between 7 and 14 years old during the period of the offending, and another complainant was aged between 12 and 13 years old at the time. Both complainants were related to the appellant's then-girlfriend. Greene was sentenced to a total effective term of 13 years and 8 months imprisonment, with a non-parole period of 9 years and 2 months. Greene sought leave to appeal against his sentence, arguing that it was manifestly excessive.

The central legal issue was whether the sentence imposed was manifestly excessive, warranting an appeal. In determining this, the court considered the severity of the offences, the age and vulnerability of the victims, and the precedents set by similar cases. The court also had to consider the appropriate balance between punishment and deterrence, as well as the principles of proportionality and justice in sentencing.

The court examined the severity of the crimes, the impact on the victims, and the need for general and specific deterrence. It considered the relevant case law, including Clarkson v The Queen, DPP v Dalgliesh, DPP v McKenzie, Osman v The Queen, DPP v Hester, and Lai v The King. After a thorough review, the court found that the original sentence was indeed manifestly excessive. Consequently, the appellant was granted leave to appeal and was re-sentenced. This decision underscores the importance of ensuring that sentences are proportionate to the nature and impact of the crimes committed.

The final orders included the granting of leave to appeal, the quashing of the original sentence, and the re-sentencing of the appellant by the original sentencing court in accordance with the principles discussed in the judgment.

Orders