John Traeger (a pseudonym)[1] v The Queen - [2019] VSCA 231

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0007

JOHN TRAEGER (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 October 2019
DATE OF JUDGMENT:	17 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 231
JUDGMENT APPEALED FROM:	DPP v Traeger (a pseudonym) [2017] VCC 1999 (Judge Gucciardo)

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CRIMINAL LAW – Sentence – Indecent assault, two charges – Manifest excess – Total effective sentence of four years and nine months – Non-parole period of three years and two months - Contact by hand and mouth with outside of victim’s vagina - Assault of short duration – No significant degree of violence – Offender voluntarily desisted - Offender alcohol-affected - No physical injury – Psychological injury - Guilty plea of ‘high utilitarian value’ - Offender’s past conviction for rape – Risk of re-offending – Sentence of 54 months’ imprisonment on a single charge of indecent assault a statistical outlier – Leave to appeal granted – Appeal allowed – Applicant sentenced to total effective sentence of three years and six months’ imprisonment with non-parole period of two years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F Todd	Nicholas WJ Rolfe & Associates
For the Respondent	Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA
WEINBERG JA:

John Traeger (‘the applicant’) pleaded guilty in the County Court to two charges of indecent assault.[2] The offences were committed on 18 May 2012, but the applicant was not arrested until 11 May 2015. Initially he was charged with rape, but in the end the matter resolved with him pleading guilty to two charges of indecent assault. The prosecution having accepted that plea, the sentencing judge was required to sentence the applicant on the footing that his offending conduct, which we describe below, had not involved any penetration of the victim’s vagina.
[2]Contrary to s 39, Crimes Act 1958 (Vic). The maximum penalty for the offence is ten years’ imprisonment.

Self-evidently, serious as the offence of indecent assault frequently is, that offence is regarded by the legislature as significantly less grave than the offence of rape contrary to s 38 of the Crimes Act 1958, the maximum penalty for rape – 25 years’ imprisonment – being two and a half times greater than the maximum penalty for indecent assault.

There was a plea hearing on 7 December 2017 and on 20 December 2017 the applicant was sentenced to 12 months’ imprisonment on charge 1 and to 54 months’ imprisonment on charge 2. Three months of the sentence on charge 1 was cumulated, leading to a total effective sentence of four years and nine months’ imprisonment. The judge fixed a non-parole period of three years and two months’ imprisonment. On charge 2, the…

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: [2019] VSCA 231
Decision Date: 17 October 2019

CaseChat Overview and Summary

John Traeger, pseudonymously represented, contested a sentence imposed by the court, which followed his conviction for two counts of indecent assault. The High Court of Australia was tasked with reviewing the appropriateness of the sentence meted out by the lower court. The central legal issue revolved around whether the sentence was manifestly excessive, given the circumstances and nature of the offences. The court had to determine if the total effective sentence of four years and nine months, with a non-parole period of three years and two months, was disproportionate to the gravity of the crimes committed.

The court meticulously examined the elements of the offences, the background of the offender, and the impact on the victims. It noted that the assaults involved contact by hand and mouth with the outside of the victim’s vagina, were of short duration, and did not involve significant violence. The offender had voluntarily ceased the assaults and was alcohol-affected at the time of the offences. Although no physical injuries were sustained, psychological harm was acknowledged. The court also recognised the offender’s prior conviction for rape and the risk of re-offending, but emphasised the 'high utilitarian value' of the offender’s guilty plea. It found that the sentence of 54 months' imprisonment for a single charge of indecent assault was a statistical outlier, indicating a manifest excess in the severity of the punishment.

Upon reviewing the circumstances and the mitigating factors, the court concluded that the sentence was manifestly excessive. It allowed the appeal and reduced the sentence to a total effective period of three years and six months’ imprisonment, with a non-parole period of two years and three months. This decision underscored the necessity for proportionality in sentencing, taking into account both the nature of the offence and the personal circumstances of the offender.

Orders