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Heels v The King

Heels v The King

Case [2024] VSCA 133 27 June 2024

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0088

BENJAMIN HEELS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 133
JUDGMENT APPEALED FROM:	DPP v Cullinan-Smayle & Heels [2023] VCC 480 (Judge Syme)

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CRIMINAL LAW – Appeal – Sentence – State charges of sexual assault and sexual activity in the presence of a child under 16 – Federal charges of using a carriage service to transmit and to cause child abuse material to be transmitted to self and possessing or controlling child abuse material obtained or accessed using a carriage service – Whether sentence manifestly excessive – Appeal allowed.

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Counsel
Applicant:		Ms M Brown
Respondent:		Ms R Champion
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

An indictment filed against the applicant in the County Court by the Commonwealth Director of Public Prosecutions charged the applicant with: sexual assault of a child under the age of 16[1] (two charges – charges 1 and 22); sexual activity in the presence of a child under the age of 16[2] (four charges – charges 2, 3, 5 and 23); using a carriage service to transmit child abuse material[3] (20 charges – charges 4, 6, 8 to 21, and 24 to 27); using a carriage service to cause child abuse material to be transmitted to self[4] (one charge – charge 7); and possessing or controlling child abuse material obtained or accessed using a carriage service[5] (one charge – charge 28).
[1]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment, and the standard sentence is four years’ imprisonment.
[2]Crimes Act 1958, s 49F(1). The maximum penalty is 10 years’ imprisonment, and the standard sentence is four years’ imprisonment.
[3]Criminal Code Act 1995 (Cth), s 474.22(1). The maximum penalty is 15 years’ imprisonment.
[4]Criminal Code (Cth), s 474.22(1). The maximum penalty is 15 years’ imprisonment.
[5]Criminal Code (Cth), s 474.22A(1). The maximum penalty is 15 years’ imprisonment.
The applicant pleaded guilty to the indictment before a judge in the County Court on 15 September 2022. Six charges on the indictment were for State offences (charges 1, 2, 3, 5, 22 and 23), so that the provisions of the Sentencing Act 1991 (Vic) were engaged. The majority of the charges (charges 4, 6 to 21, and 24 to 28) were for federal offences, however, so that the notoriously difficult and error-prone federal sentencing regime — principally located in Part 1B of the Crimes Act 1914 (Cth) — applied. As a result, the judge was confronted with a somewhat burdensome sentencing task.
After a plea in mitigation conducted on 21 and 24 February 2023, on 31 March 2023 the judge sentenced the applicant to a notional total effective sentence of 11 years’ imprisonment, with a notional non-parole period of seven years and…

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 Heels v The King

Details

AGLC: Heels v The King [2024] VSCA 133
Case: [2024] VSCA 133
Decision Date: 27 June 2024

CaseChat Overview and Summary

In the matter of Heels v The King, the appellant, who had been convicted of state charges of sexual assault and sexual activity in the presence of a child under 16, as well as federal charges of using a carriage service to transmit and to cause child abuse material to be transmitted to himself and possessing or controlling child abuse material obtained or accessed using a carriage service, sought to appeal the sentence imposed by the trial court. The appellant argued that the sentence was manifestly excessive and sought its reduction. The appeal was heard by the Court of Appeal, which was tasked with determining whether the sentence imposed by the trial court was manifestly excessive and, if so, whether the sentence should be reduced.

The legal issues before the Court of Appeal centred on the severity of the sentence imposed by the trial court and whether it was manifestly excessive. The Court of Appeal was required to consider the principles of sentencing, including the need for punishment, deterrence, rehabilitation, and denunciation, as well as the principles of proportionality and parity. The Court of Appeal was also required to consider the nature and circumstances of the offences, the appellant's culpability, and any mitigating factors.

In considering the appeal, the Court of Appeal noted that the trial judge had given significant weight to the appellant's personal circumstances, including his age, his remorse, and his prospects for rehabilitation. However, the Court of Appeal found that the trial judge had not given sufficient weight to the gravity of the offences, particularly the federal charges, which involved the transmission and possession of child abuse material. The Court of Appeal also noted that the sentence imposed by the trial court was significantly lower than the maximum penalty for the offences. After considering all the circumstances, the Court of Appeal found that the sentence imposed by the trial court was manifestly excessive and ordered that it be reduced.

In conclusion, the Court of Appeal allowed the appeal and reduced the sentence imposed by the trial court. The Court of Appeal emphasised the need for sentences to reflect the seriousness of the offences and to be proportionate to the appellant's culpability. The Court of Appeal also noted that the principles of sentencing require a balanced approach that takes into account both the nature and circumstances of the offences and the appellant's personal circumstances.

Orders