Hester (a pseudonym) v The King - [2023] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0024

NATHAN HESTER (A PSEUDONYM)[1]	Appellant
v
THE KING	Respondent

[1]To ensure that there is no possibility of the identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	BEACH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023
DATE OF JUDGMENT:	7 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 41
JUDGMENT APPEALED FROM:	[2022] VCC 121 (Judge O’Connell)

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CRIMINAL LAW – Sentence – Appeal – Sexual penetration of a child under 16 – Course of conduct charge – Plea of not guilty – Appellant 88 years of age at sentencing – Sentence of 6 years and 9 months, with NPP of 3 years and 9 months – Manifest excess – Whether sentence manifestly excessive – Stern sentence – Sentence not manifestly excessive – Appeal dismissed.

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Counsel
Appellant:		Ms H Canham
Respondent:		Mr CB Boyce KC
Solicitors
Appellant:	Doogue + George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
TAYLOR JA:

On 14 December 2021, following a 7-day trial in the County Court, the appellant was convicted of one charge of sexual penetration of a child under 16.[2] The charge was a course of conduct charge,[3] covering the period between 18 September 2005 and 30 November 2006. The maximum term of imprisonment for the offence of which the appellant was convicted was ten years.
[2]Contrary to s 45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000.
[3]Within the meaning of cl 4A of sch 1 to the Criminal Procedure Act 2009.
On 15 February 2022, following a plea hearing on 4 February 2022, the appellant was sentenced to a term of imprisonment of six years and nine months, with a non-parole period of three years and nine months.[4]
[4]DPP v Hester (a pseudonym) [2023] VCC 121 (‘Sentencing Reasons’).
Pursuant to leave granted by this Court on 16 August 2022,[5] the appellant appeals against his sentence on the single ground that the sentence (including the non-parole period) is manifestly excessive.
[5]Hester (a pseudonym) v The Queen (Unreported, Court of Appeal, T Forrest JA, 16 August 2022) (‘Leave Reasons’).

Circumstances of the offending

The offending occurred between 18 September 2005 and 30 November 2006. The victim of the offending was the granddaughter of the appellant’s wife. At the time of the offending, she was aged between nine and 10, and the appellant was aged between 72 and 73.
The victim was born in the Philippines in May 1996. Prior to 2005, she resided in the Philippines with her mother and two siblings, an older brother and a younger sister. The evidence called at trial established that the appellant and his wife would regularly visit the victim and her family in the Philippines. They would typically spend three or so weeks with them on the way to holidaying…

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 Hester (a pseudonym) v The King

Details

AGLC: Hester (a pseudonym) v The King [2023] VSCA 41
Case: [2023] VSCA 41
Decision Date: 7 March 2023

CaseChat Overview and Summary

The appellant, identified as Hester, appealed against his sentence for sexual penetration of a child under 16 and a charge related to a course of conduct. Hester pleaded not guilty to these charges but was convicted by a jury. The primary legal issue before the court was whether the sentence of 6 years and 9 months imprisonment, with a non-parole period of 3 years and 9 months, was manifestly excessive. The appellant argued that the sentence was disproportionately harsh given his age of 88 at the time of sentencing. The court had to assess the proportionality of the sentence and determine if it was manifestly excessive under the relevant legislative framework.

The court examined the principles of sentencing for serious sexual offences and considered the need for denunciation and deterrence. It also took into account the appellant’s age, character, and the impact of the crimes on the victims. The court emphasised that while the appellant's age was a mitigating factor, the gravity of the offences and the need to protect the community outweighed this consideration. The court concluded that the sentence, while stern, was not manifestly excessive as it appropriately reflected the seriousness of the crimes committed. The court found that the sentence was proportionate to the crimes and did not constitute an error of law warranting an appeal.

The appeal was dismissed, and the original sentence stood. The court reiterated the importance of maintaining a balance between punishment, deterrence, and the protection of society. The sentence was deemed to adequately reflect the gravity of the offences and the need for appropriate punishment, despite the appellant's advanced age. The court’s decision underscored the principle that while age can be a mitigating factor, it is not determinative in cases involving serious sexual offences. The final orders were that the appeal was dismissed, and the original sentence remained in effect.

Orders