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James Cotton (a pseudonym)[1] v The Queen

James Cotton (a pseudonym)[1] v The Queen

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Case Copied 18 May 2015 40 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0051

JAMES COTTON (A PSEUDONYM)[1]	Appellant
v
THE QUEEN	Respondent

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

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JUDGES:	WEINBERG and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2015
DATE OF JUDGMENT:	18 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 103
JUDGMENT APPEALED FROM:	DPP v [Cotton] (Unreported, County Court of Victoria, Judge Wilmoth, 28 February 2014)

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CRIMINAL LAW — Sentence — Plea of not guilty — Conviction on 8 charges of incest and 2 charges of indecent act with a child under 16 years of age — Victim was appellant’s stepdaughter — Offending occurred over 12 months while victim aged 13–14 — Offending resulted in victim suffering a severe psychiatric condition — Last incest offence occurred while victim on weekend leave from adolescent psychiatric facility — Total effective sentence of 13 years with non-parole period of 10 years — Whether sentence manifestly excessive — Current sentencing practice — Review of sentencing statistics and comparable cases — Whether offending was in the worst category of incest offences — Principle of totality — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Victoria Legal Aid
Mr J R Cass
For the Respondent	Ms S Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA

KYROU JA:

Introduction and summary

On 29 November 2013, after a trial lasting 10 days, the appellant (now aged 40) was found guilty of eight charges of incest and two charges of committing an indecent act with a child under 16. Following a plea, he was sentenced on 28 February 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Incest
[Crimes Act 1958 s 44 (1)]
25 years
6 years 10 months

2 Indecent act with a child under 16 [Crimes Act 1958 s 47(1)]
10 years
1 year 1 month

3 Incest 25 years 6 years 10 months

4 Indecent act with a child under 16 10 years 1 year 1 month

5 Incest 25 years 6 years 10 months

6 Incest 25 years 6 years 10 months

7 Incest 25 years 6 years 10 months

8 Incest 25 years 6 years 10 months

9 Incest 25 years 6 years 10 months

10 Incest 25 years 7 years Base

Total Effective Sentence: 13 years

Non-Parole Period: 10 years

Pre-sentence Detention Declared: 91 days

Other orders: Sentenced as a serious sexual offender in relation to charges 3-10 pursuant to s 6F, Sentencing Act 1991; sex offender registration order pursuant to s 11, Sex Offenders Registration Act 2004 (appellant to report for the remainder of his life pursuant to s 34); forensic sample order.

On 13 August 2014, Whelan JA refused leave to appeal. The appellant elected to renew his sole ground of appeal. On 14 November 2014, Redlich and Priest JJA…

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.

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Details

Case: [2015] VSCA 103
Decision Date: 18 May 2015

CaseChat Overview and Summary

The appellant, James Cotton, was convicted on eight counts of incest and two counts of indecent acts with a child under the age of 16. The victim was the appellant's stepdaughter, and the offending took place over a period of 12 months when the victim was aged between 13 and 14 years. The offending resulted in the victim suffering from a severe psychiatric condition, with the final incest offence occurring while the victim was on weekend leave from an adolescent psychiatric facility. The court imposed a total effective sentence of 13 years, with a non-parole period of 10 years. The appellant appealed the sentence on the basis that it was manifestly excessive.

The legal issue before the court was whether the sentence was manifestly excessive, taking into account current sentencing practice, statistics, and comparable cases. The court also had to consider whether the offending was in the worst category of incest offences and whether the principle of totality had been properly applied. The court noted that the offending was of a serious nature and had a profound impact on the victim. However, the court also considered the appellant's guilty plea, his remorse, and his prospects of rehabilitation.

The court held that the sentence was not manifestly excessive, and dismissed the appeal. The court found that the sentence reflected the seriousness of the offending and the need to protect the community. The court also noted that the sentence was within the range of sentences imposed for similar offending in other cases. The court emphasised that the principle of totality required the sentence to be considered as a whole, rather than as individual sentences for each count. The court was satisfied that the sentence was just and appropriate in all the circumstances.

No further orders were made.

Orders