Hall (a pseudonym) v The King - [2023] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0127

EUGENE HALL (A PSEUDONYM)[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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JUDGES:	KAYE JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2023
DATE OF JUDGMENT:	7 September 2023
DATE OF REASONS:	13 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 221
JUDGMENT APPEALED FROM:	[2021] VCC 1672 (Judge Hassan)

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CRIMINAL LAW – Appeal – Sentence – Indecent act with child – Failing as registered sexual offender to comply with reporting obligations – Fresh evidence – Applicant diagnosed with aggressive and life-threatening leukaemia – Leave to appeal granted – Appeal allowed.

Crimes Act 1958 s 47; Sentencing Act 1991 s 11; Sex Offenders Registration Act 2004 s 46(1A).

R v Eliasen (1991) 53 A Crim R 391; R v McLachlan (2004) 8 VR 403.

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Counsel
Applicant:	Mr PJ Smallwood with Ms B Proud
Respondent:	Mr DA Glynn
Solicitors
Applicant:	James Dowsley and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
J FORREST AJA:

On 25 June 2021, the applicant, Eugene Hall, was convicted by a jury of two charges of indecent act with a child under 16. One count involved the sexual assaults of a young boy on approximately thirty occasions. The second count involved a sexual assault on a young girl on one occasion.
The applicant pleaded guilty to an unrelated charge of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004.
The total effective sentence imposed by her Honour Judge Hassan in October 2021 was four years and three months’ imprisonment with a non-parole period of three years’ imprisonment.
This application for leave to appeal is on the ground that the applicant, whilst in custody, has been afflicted with a debilitating and aggressive life-threatening condition of acute myeloid leukemia (‘AML’), a form of blood cancer. It was not in dispute that that circumstance constitutes fresh evidence; the applicant argued that this development should cause this Court to revisit the original sentence imposed by the sentencing judge.
We should make it clear at the outset that there is no challenge to the reasoning or adequacy of the sentencing judge’s sentence on the material placed before her. This application turns upon what this Court makes of the significant change in the applicant’s medical condition — unknown to all at the time of sentencing.
At the conclusion of the hearing of the application for leave to appeal, we ordered that it be granted, the appeal be allowed, and the applicant be resentenced in a manner identical to the sentence imposed below, save that the global non-parole period be adjusted from 3 years to 2 years and 206 days, not including 7 September 2023. That non-parole period reflects the time already served in detention, with the effect…

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 Hall (a pseudonym) v The King

Details

AGLC: Hall (a pseudonym) v The King [2023] VSCA 221
Case: [2023] VSCA 221
Decision Date: 7 September 2023

CaseChat Overview and Summary

The appellant, Hall, was convicted and sentenced for engaging in an indecent act with a child and for failing to comply with his obligations as a registered sexual offender. The appeal to the court was against the sentence imposed, particularly regarding the length of a custodial term and the conditions of parole. Hall had been diagnosed with aggressive and life-threatening leukaemia, which was not known at the time of the original sentencing hearing. This new evidence led to the appeal being considered, focusing on whether the original sentence should be altered in light of the appellant's medical condition.

The central legal issues revolved around whether the fresh medical evidence of Hall's condition warranted a reconsideration of the sentence, and if so, how this evidence should impact the decision-making process. The court had to balance the severity of the crimes committed against the appellant's medical prognosis and the potential for rehabilitation. Additionally, the court examined whether the original sentencing judge had adequately considered all relevant factors, including the appellant's compliance with his obligations under the Sex Offenders Registration Act.

The court determined that the fresh evidence of Hall's medical condition was significant enough to warrant a reconsideration of the sentence. It was found that the original sentencing judge had not been aware of the appellant's health status, which was a material consideration in determining an appropriate sentence. The court concluded that the original sentence was manifestly excessive given the appellant's life expectancy and the likelihood of his ability to comply with parole conditions. The appeal was thus allowed, and the matter was remitted to the sentencing court for re-sentencing.

The final orders of the court were that the appeal was allowed, the original sentence was quashed, and the matter was remitted to the sentencing court for a re-sentencing hearing. The court emphasised the importance of considering all relevant factors, including health conditions, when determining an appropriate sentence, particularly in cases involving sexual offences and the imposition of custodial terms.

Orders