James Edward Campbell v The Queen - [2019] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0213

JAMES EDWARD CAMPBELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 June 2019
DATE OF JUDGMENT:	2 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 158
JUDGMENT APPEALED FROM:	[2018] VCC 1510 (Judge Carmody)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Grooming a child under 16 for sexual conduct (3 charges), using carriage service to transmit indecent communication to a person under 16, failing to comply with reporting obligations under Sex Offenders Registration Act (2 charges), possessing child abuse material and committing indictable offence while on bail – Total effective sentence of 5 years and 9 months – Orders requiring applicant to serve 4 years and 3 months before being eligible for parole – Whether sentence involved double punishment – Whether judge erred in finding circumstance of aggravation – Whether sentence manifestly excessive – Applicant’s complaints of error not reasonably arguable – Not reasonably arguable that sentence manifestly excessive – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Phillips	Victoria Legal Aid
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

On 11 September 2018, the applicant pleaded guilty in the County Court to three charges of grooming for sexual conduct with a child under 16, one charge of using a carriage service to transmit indecent communication to a person under 16, two charges of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, one charge of possessing child abuse material and one charge of committing an indictable offence whilst on bail. On 14 September 2018, the applicant was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1

Grooming for sexual conduct with child under 16

[s 49B(2) of the Crimes Act 1958]

10 years

36 months

Base

2

Grooming for sexual conduct with child under 16

[s 49M(1) of the Crimes Act 1958]

10 years

36 months

-

3

Use a carriage service to transmit indecent communication to a person under 16

[s 474.27A of the Criminal Code Act 1995 (Cth)]

7 years

6 months

To commence 3 months before the expiration of the non-parole period of the State sentence

4

Failing to comply with reporting obligations

[s 46(1) of the Sex Offenders Registration Act]

5 years

6 months

3 months

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Grooming for sexual conduct with child under 16 [s 49B(2) of the Crimes Act 1958]	10 years	36 months	Base
2	Grooming for sexual conduct with child under 16 [s 49M(1) of the Crimes Act 1958]	10 years	36 months	-
3	Use a carriage service to transmit indecent communication to a person under 16 [s 474.27A of the Criminal Code Act 1995 (Cth)]	7 years	6 months	To commence 3 months before the expiration of the non-parole period of the State sentence
4	Failing to comply with reporting obligations [s 46(1) of the Sex Offenders Registration Act]	5 years	6 months	3 months

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

5

Possession of child abuse material

[s 51G of the Crimes Act 1958]

10 years

9 months

6 months

6

Grooming for sexual conduct with child under 16

[s 49M(1) of the Crimes Act 1958]

10 years

30 months

20 months

7

Failing to comply with reporting obligations

[s 46(1) of the Sex Offenders Registration Act]

5 years

6 months

3 months

Related summary…

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
5	Possession of child abuse material [s 51G of the Crimes Act 1958]	10 years	9 months	6 months
6	Grooming for sexual conduct with child under 16 [s 49M(1) of the Crimes Act 1958]	10 years	30 months	20 months
7	Failing to comply with reporting obligations [s 46(1) of the Sex Offenders Registration Act]	5 years	6 months	3 months
Related summary…

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 James Edward Campbell v The Queen

Details

AGLC: James Edward Campbell v The Queen [2019] VSCA 158
Case: [2019] VSCA 158
Decision Date: 2 July 2019

CaseChat Overview and Summary

James Edward Campbell, the applicant, has brought an application for leave to appeal against his conviction and sentence. The applicant was found guilty of grooming a child under 16 for sexual conduct, using a carriage service to transmit indecent communications to a person under 16, failing to comply with reporting obligations under the Sex Offenders Registration Act, possessing child abuse material, and committing an indictable offence while on bail. The case was heard and determined by the High Court of Australia. The applicant sought leave to appeal against his conviction and sentence, arguing that the sentence involved double punishment, the judge erred in finding a circumstance of aggravation, and the sentence was manifestly excessive.

The primary legal issues before the court were whether the applicant's complaints of error were reasonably arguable and whether there was a reasonable prospect that a less severe sentence would be imposed if the appeal were allowed. The court had to assess the applicant's arguments and determine whether they were reasonably arguable, and if so, whether there was a reasonable prospect that the appeal would be successful. The court found that the applicant's complaints of error were not reasonably arguable, and there was no reasonable prospect that a less severe sentence would be imposed if the appeal were allowed. The court held that the applicant's complaints of error were not reasonably arguable, and there was no reasonable prospect that a less severe sentence would be imposed if the appeal were allowed.

The court held that the applicant's complaints of error were not reasonably arguable, and there was no reasonable prospect that a less severe sentence would be imposed if the appeal were allowed. The court found that the sentence did not involve double punishment, and the judge did not err in finding a circumstance of aggravation. The court also found that the sentence was not manifestly excessive, and the applicant's complaints of error were not reasonably arguable. The court refused the application for leave to appeal. The court found that the applicant's complaints of error were not reasonably arguable, and there was no reasonable prospect that a less severe sentence would be imposed if the appeal were allowed. The application for leave to appeal was therefore refused.

Orders