Greene (a pseudonym) v The King - [2023] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0113

SHANE GREENE (A PSEUDONYM)0F[1]	Applicant
v
THE KING	Respondent

[1]To avoid the possibility of identifying the victim of a sexual offence, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	24 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 252
JUDGMENT APPEALED FROM:	DPP v Greene (a pseudonym) [2023] VCC 942 (Judge Ellis)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Leave to appeal – Sentence – 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 7–14 during period of offending – Other complainant aged 12/13 – Complainants younger cousins of 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 refused.

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Counsel for written submissions
Applicant:	Ms E Clark
Respondent:	Ms M Mahady
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

Introduction and summary

On 27 February 2023 the applicant was convicted by a County Court jury of 11 child sexual offences, being all charges on indictment M11089304.1A. All offences involved the same complainant, Claire Rogers1F[2]. He subsequently pleaded guilty to a single charge of using a carriage service for sexual activity with a person under 16 years, being the only charge on indictment M11089304.1B. That offence involved a different complainant, Anna Rogers,2F[3] the older sister of the first complainant.
[2]A pseudonym.
[3]A pseudonym.
Following a plea hearing on 23 May 2023, the applicant was sentenced on 5 and 7 June 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation / Commencement
*Indictment M11089304.1A*
1	Indecent act with a child under 16 years	10 years	12 months	3 months
2	Sexual penetration of a child under 16 years	25 years	6 years and 6 months	2 years and 6 months
3	Indecent act with a child under 16 years	10 years	6 months	N/A
4	Indecent act with a child under 16 years	10 years	9 months	4 months
5	Indecent act with a child under 16 years	10 years	15 months	5 months
6	Sexual penetration of a child under 16 years	10 years	5 years	9 months
7	Sexual penetration of a child under 16 years	10 years	8 years	Base
8	Indecent act with a child under 16 years	10 years	12 months	3 months
9	Indecent act with a child under 16 years	10 years	3 months	N/A
10	Sexual penetration of a child under 16 years	10 years	5 years	12 months
11	Sexual penetration…

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 [2023] VSCA 252
Case: [2023] VSCA 252
Decision Date: 24 October 2023

CaseChat Overview and Summary

The case of Greene v The King involved an appeal against sentence by the defendant, referred to as Greene, who was convicted on eleven charges of sexual offences against a child under the age of sixteen, and one charge of using a carriage service for sexual activity with a person under sixteen. The victims were the younger cousins of Greene's then-girlfriend, one of whom was between seven and fourteen years old during the period of offending, and the other aged twelve or thirteen. Greene was sentenced to a total effective term of thirteen years and eight months' imprisonment, with a non-parole period of nine years and two months. Greene sought leave to appeal on the grounds that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed on Greene was manifestly excessive, such that it warranted the grant of leave to appeal. This involved a consideration of the gravity of the offences, the nature and extent of Greene's offending, the impact on the victims, and the principles of sentencing as outlined in relevant legislation and case law. The court also had to assess whether the sentence fell outside the range of sentences that could be considered reasonable in all the circumstances.

The court found that while the offences were of a serious nature, the sentence imposed was within the range of sentences that could be considered appropriate. The court emphasised the need for sentences to reflect the seriousness of the offences, provide deterrence, and protect the community. The judge detailed the aggravating and mitigating factors considered, including the vulnerability of the victims and the impact of the offending on them, as well as Greene's background and personal circumstances. The court concluded that the sentence was not manifestly excessive and denied leave to appeal.

The final orders of the court were that leave to appeal the sentence imposed on Greene was refused. The conviction and sentence remained in place, with no further appeal permitted on the grounds of the sentence being manifestly excessive.

Orders