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Harmon (a pseudonym) v The Queen

Harmon (a pseudonym) v The Queen

Case [2017] VSCA 169 29 June 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0210

CLAYTON HARMON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To reduce the possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	ASHLEY, REDLICH and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2017
DATE OF JUDGMENT:	29 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 169
JUDGMENT APPEALED FROM:	DPP v [Harmon] (Unreported, County Court of Victoria, Judge Hampel, 28 September 2016)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Multiple sexual offences against daughter, niece and granddaughter over many years – Representative and course of conduct charges – Serious sexual offender – Total effective sentence 18y 9m – Non-parole period 14y 3m – Sentencing judge found no causal connection between offender’s extremely low intellectual functioning and offending – Whether finding open on the evidence – Applicability of Verdins principles – Whether sentence manifestly excessive – Leave refused – O’Connor v The Queen [2014] VSCA 108 and DPP v O’Neill (2015) 47 VR 395 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Goodfellow	Tony Hannebery Lawyers
For the Respondent	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:

Clayton Harmon (‘the applicant’) is aged 77, having been born on 19 May 1940. On 4 April 2016, he pleaded guilty to a total of 10 sexual offences committed against three children — his daughter, a niece, and his granddaughter. The third victim was the daughter of the first victim.

On 28 September 2016, following a plea hearing, the applicant was sentenced to a total effective sentence of 18 years and 9 months’ imprisonment. The judge fixed a non-parole period of 14 years and 3 months. The applicant was sentenced as a serious sexual offender on all charges,[2] because he had been sentenced to a period of three years’ imprisonment in 1999 on two charges of sexual penetration of a child aged between 10 and 16 years.
[2]See Sentencing Act 1991 pt 2A.

The charges, the relevant statutory provisions, and sentences imposed were as follows:

Charge No Offence Maximum Sentence Cumulation

1, 2 and 5

Charge 2 is a representative charge
Unlawful and indecent assault of a female [Crimes Act 1958 (Vic) s 55(1)] (repealed) 5 years’ imprisonment then 10 years’ imprisonment on conviction of a subsequent offence
Charge 1:

2 years’ imprisonment

Charge 2:

3 years’ imprisonment

Charge 5:

30 months’ imprisonment

Charge 1:
6 months

Charge 2:
12 months

Charge 5:
9 months

3, 4, 8, 9 and 10

Charge 4 is a course of conduct charge

Charges 8 and 9 are representative charges

Incest

Charges 3 and 4 [Crimes Act 1958 (Vic) s 52(1)] (repealed)

Charges 8, 9 and 10 [Crimes Act 1958 (Vic) s 44(2)]

Charges 3 and 4: 20 years’ imprisonment

Charges 8, 9 and 10: 25 years’ imprisonment

Charge 3:

4…

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 Harmon (a pseudonym) v The Queen

Details

AGLC: Harmon (a pseudonym) v The Queen [2017] VSCA 169
Case: [2017] VSCA 169
Decision Date: 29 June 2017

CaseChat Overview and Summary

The appellant, referred to as Harmon, was convicted and sentenced for multiple sexual offences against his daughter, niece, and granddaughter over an extended period. The case came before the court on an application for leave to appeal against the severity of the sentence, which was 18 years and 9 months in total, with a non-parole period of 14 years and 3 months. The primary contention was whether the sentence was manifestly excessive and whether the sentencing judge's finding on the absence of a causal connection between Harmon's intellectual functioning and his offending was open to the evidence.

The court was required to determine if the sentencing judge’s conclusion that Harmon's extremely low intellectual functioning did not causally connect to his offending was supported by the evidence. Furthermore, the court examined whether the sentence was so excessive as to shock the conscience of the court and if the principles outlined in Verdins applied, warranting a review of the sentence. The court also considered the principles from O’Connor v The Queen and DPP v O’Neill to assess the proportionality and appropriateness of the sentence given the circumstances.

After a thorough review, the court found that the sentencing judge's findings on the intellectual functioning and its relation to the offending were open to the evidence presented. The court also concluded that the sentence was not manifestly excessive, taking into account the gravity and extent of the offences committed. Therefore, the application for leave to appeal was refused. The court upheld the original sentence, affirming the proportionality and appropriateness of the punishment in the context of the crimes committed.

Orders