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Jenkins v The Queen

Jenkins v The Queen

Case [2021] VSCA 65 19 March 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0200

MATTHEW BLAKE JENKINS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2021
DATE OF JUDGMENT:	19 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 65
JUDGMENT APPEALED FROM:	[2019] VCC 1504 (Judge Wilmoth)

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CRIMINAL LAW — Appeal — Sentence — Using carriage service to transmit indecent communications to person aged under 16 — Sexual penetration with a child under 16 — Applicant aged 22 at time of offending — Whether total effective state sentence and non-parole period manifestly excessive — Sufficient weight given to overlap of charges, seriousness of offending conduct, age of applicant, totality — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci and Ms S Wendlandt	Tony Hargreaves & Partners
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA:

Introduction

An indictment filed in the County Court charged the applicant with the Commonwealth offence of using a carriage service to transmit indecent communications to a person aged under 16[1] (charge 1), and three State offences of sexual penetration with a child under 16[2] (charges 2, 3 and 4). There were two complainants, ‘DJ’[3] (charges 1, 2 and 4) and ‘CP’[4] (charge 3), both of whom declined to make victim impact statements.
[1]Criminal Code (Cth), s 474.27A(1). The maximum penalty is seven years’ imprisonment.
[2]Crimes Act 1958, s 49B(1). The maximum penalty is 15 years’ imprisonment. Given that the standard sentence scheme took effect on 1 February 2018, the standard sentence on charge 4 was six years’ imprisonment.
[3]Born in March 2004.
[4]Born in February 2004.

DJ was aged 13 or 14 years when the events founding charge 1 occurred, and was 14 when the activities founding charges 3 and 4 occurred. For the purposes of charge 3, CP was aged 14. The applicant[5] was aged 22.
[5]Born 18 May 1995.

On 3 September 2019, the applicant pleaded guilty to the four charges. Following a plea in mitigation, the judge sentenced the applicant on 17 September 2019 to a total effective sentence of four years and nine months’ imprisonment, with a non-parole period of two years and three months, in accordance with the following table:

Charge Offence Sentence Cumulation[6]

1 Using a carriage service to transmit indecent communications to a person aged under 16 12 months 3 months

2 Sexual penetration with a child under 16 3 years 12 months

3 Sexual penetration with a child under 16 2 years 6 months

4 Sexual penetration with a child under 16 3 years Base[7]

Total effective sentence 4 years and 9 months’ imprisonment

Non-parole period 2 years and 3 months

Section 6AAA declaration 5 years and 6 months’ imprisonment with 3 years and 6 months non-parole

Other orders Forensic sample; forfeiture; life registration pursuant to s 34 of the Sex Offenders Registration Act 2004

[6]So as to effect…

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 Jenkins v The Queen

Details

AGLC: Matthew Blake Jenkins v The Queen [2021] VSCA 65
Case: [2021] VSCA 65
Decision Date: 19 March 2021

CaseChat Overview and Summary

In Jenkins v The Queen, the appellant, a 22-year-old individual, was convicted of using a carriage service to transmit indecent communications to a person aged under 16 and of sexually penetrating a child under 16. The appellant sought leave to appeal against the sentence imposed by the Court of Appeal of the Supreme Court of Victoria. The primary legal issue was whether the total effective state sentence and non-parole period were manifestly excessive, particularly in light of the overlap of charges, the seriousness of the offending conduct, the appellant's age, and the principle of totality.

The Court of Appeal considered the arguments presented by the appellant's counsel regarding the sentence's severity. The appellant contended that insufficient weight was given to the overlap of charges, the seriousness of the offending conduct, the appellant's age, and the principle of totality. However, the Court found that the primary judge had appropriately considered these factors and had provided detailed reasons for the sentence imposed. The Court of Appeal held that the total effective state sentence and non-parole period were not manifestly excessive, and the appellant's arguments did not demonstrate a significant error in the primary judge's approach.

Given the comprehensive analysis of the factors by the primary judge, the Court of Appeal found that the sentence was proportionate to the gravity of the offending. The Court emphasised the importance of protecting young victims and maintaining public confidence in the criminal justice system. Consequently, the Court of Appeal dismissed the appeal and refused the appellant leave to appeal against the sentence.

Orders