[1]To ensure there is no possibility of the identification of the victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, the complainants and the complainants’ mother.
CRIMINAL LAW – Conviction – Appeal – Incest – Indecent act with child under 16 – Course of conduct charges – Whether convictions unsafe and unsatisfactory – Whether evidence ‘so vague and nebulous’ as to deprive the accused ‘of trial fairness’ – Level of particularity of incidents required for course of conduct charges – Whether evidence must be capable of being distilled into separate incidents – Proposed ground of appeal not reasonably arguable – Application for leave to appeal against conviction refused – Clause 4A of Schedule 1 of the Criminal Procedure Act 2009.
CRIMINAL LAW – Sentence – Appeal – Multiple charges including multiple charges of incest and committing an indecent act with a child under 16 – Course of conduct charges – Total effective sentence of 21 years, with non-parole period of 15 years – Serious examples of serious offences – No remorse – Aggravating circumstances – Totality – Manifest excess – No totality error – Sentence not manifestly excessive – Appeal dismissed – Sentencing Act 1991, ss 5(2)(b), 5(2F), 6B and 6E.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Dr M Fitzgerald
Dr Martine Marich & Associates
For the Crown
Mr C Boyce SC
Mr J Cain, Solicitor for Public Prosecutions
PRIEST JA
For the reasons given by Beach and Weinberg JJA, I agree that the application for leave to appeal against the convictions on charges 8, 9 and 10 must be refused.
I respectfully differ from their Honours concerning the fate of the sentence application. Although I do not regard the individual sentence on any charge as excessive,[2] in my opinion the total effective sentence — produced by the orders for cumulation[3] — is manifestly excessive, as is the non-parole period.[4] Given that conclusion, it is unnecessary to attempt to attribute specific error[5] (although I consider it likely that the sentence has resulted through a misapplication of the principle of totality,[6] and an overestimation of the comparative seriousness of the offending overall).[7]
[6]In his Reasons for Sentence the judge observed:
There is not much else that can be said…
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 Harlow (a pseudonym) v The Queen
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AGLC
Harlow (a pseudonym) v The Queen [2018] VSCA 234
Case
[2018] VSCA 234
Decision Date
CaseChat Overview and Summary
The case of Harlow v The Queen involved the appellant, identified by a pseudonym, appealing against his convictions and sentences for multiple serious offences, including incest and committing indecent acts with a child under 16. The appeal was heard by the Court of Appeal of the Supreme Court of Queensland. The appellant contested both the safety and satisfaction of his convictions and the excessiveness of his sentence.
The legal issues before the court included whether the convictions were unsafe and unsatisfactory due to the vagueness of the evidence, and whether the evidence was so unclear as to deprive the appellant of a fair trial. Another issue was the level of particularity required for course of conduct charges, and whether the evidence had to be capable of being distilled into separate incidents. Additionally, the court had to consider whether the appeal grounds were reasonably arguable, and if the sentence imposed was manifestly excessive.
The court found that the convictions were safe and satisfactory, despite the appellant's arguments about the vagueness of the evidence. The court held that the evidence, while not detailed, was sufficient to allow a jury to be satisfied beyond reasonable doubt of the appellant's guilt. The court also found that the proposed grounds of appeal were not reasonably arguable. Regarding the sentence, the court held that the sentence was not manifestly excessive, considering the seriousness of the offences, the absence of remorse, and the totality principle. The court dismissed the appeal against both conviction and sentence.
The court ultimately refused the application for leave to appeal against the conviction and dismissed the appeal against the sentence, affirming the trial judge's decisions.