Criminal law - Sentence - Appeal - Sexual offence - Sentence of 3-1/2 years' imprisonment - Isolated act - Relevance of good character and rehabilitation - Appellant in position of power in relation to complainant

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D Dann
Respondent: Mr B Fiannaca

Solicitors:

Appellant: Balmer & Associates
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

"D" v The Queen [2000] WASCA 137
Cameron v The Queen (2002) 209 CLR 339
House v The King (1936) 55 CLR 499
Ibbs v The Queen (1987) 163 CLR 447. ,
Lowndes v The Queen (1999) 195 CLR 665
R v "EPR" [2001] WASCA 214
R v Quartermaine [2000] WASCA 341
Ryan v The Queen (2001) 206 CLR 267
Trescuri v The Queen [1999] WASCA 172
Woods v R (1994) 14 WAR 341

Case(s) also cited:

Nil

PARKER J: The circumstances of this offence of sexual penetration involved a victim who was a young man aged 17 years. He was hoping to commence work the following morning with a firm of which the appellant, aged 36 years, was the manager in this State. By arrangement with the appellant, he was to spend the night at the appellant's residence and travel with the appellant to the workplace the next morning.
Thus the victim was vulnerable in this situation, both because of his age and because of the potential employment relationship. The facts demonstrate that the appellant took advantage of that vulnerability.
While there are a number of factors which tell in mitigation, the nature and circumstances of this offence remain serious. It is not shown that the sentencing Judge erred in principle or fact or failed to weigh adequately any material consideration.
I agree with Miller J, for the reasons he gives, that the sentence imposed is within the appropriate range and that no basis has been demonstrated on which this Court might properly interfere with the exercise of sentencing discretion in this case.
While leave to appeal should be granted, the appeal should be dismissed.
TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Miller J, in which his Honour sets out comprehensively the facts relating to this application for leave to appeal against sentence. I agree with those reasons and there is nothing I wish to add.
MILLER J: This is an application for leave to appeal a sentence of 3‑1/2 years' imprisonment imposed upon the appellant in the District Court at Perth on 1 April 2003, for the offence of sexual penetration without consent.
The appellant was granted…

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 Jones v The Queen

Details

AGLC: Jones v The Queen [2003] WASCA 255
Case: [2003] WASCA 255
Decision Date: 24 OCTOBER 2003

CaseChat Overview and Summary

The appeal against sentence was brought before the court by the appellant, Jones, who was convicted of a sexual offence. The original sentence handed down by the lower court was three and a half years' imprisonment. The appellant sought a lesser sentence, arguing that the original sentence was excessive given the circumstances of the case. The nature of the appeal was to challenge the severity of the sentence imposed by the lower court, taking into account the appellant's good character and prospects for rehabilitation.

The legal issues that the court was required to decide included the appropriate sentence for the offence committed, the relevance of the appellant's good character and prospects for rehabilitation, and the need to consider whether the sentence imposed was excessive in light of the appellant's position of power in relation to the complainant. The court had to balance these factors against the need to ensure that the sentence reflected the seriousness of the offence and served as a deterrent to others who might commit similar crimes.

In delivering the judgment, the court noted that the offence committed by the appellant was serious and required a significant sentence. However, the court also recognised that the appellant had no prior criminal history and was in a position of power in relation to the complainant. The court considered the appellant's good character and prospects for rehabilitation, as well as the need to ensure that the sentence was proportionate to the offence committed. Ultimately, the court determined that the original sentence of three and a half years' imprisonment was appropriate, given the circumstances of the case.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of three and a half years' imprisonment was upheld. The court acknowledged the seriousness of the offence but also recognised the appellant's good character and prospects for rehabilitation. The court considered all relevant factors and determined that the original sentence was appropriate in the circumstances.

Orders