Justin Jowett (a pseudonym)[1] v The Queen - [2017] VSCA 358

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0158

JUSTIN JOWETT (A PSEUDONYM)[1]	Applicant
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 Applicant.

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JUDGES:	SANTAMARIA and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 November 2017
DATE OF JUDGMENT:	5 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 358
JUDGMENT APPEALED FROM:	DPP v Jowett (a Pseudonym) (Unreported, County Court of Victoria, Judge Dyer, 6 July 2017)

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CRIMINAL LAW – Appeal – Sentence – Two charges of sexual penetration of a child under 16 (under care, supervision or authority) – Offending against step-sister in applicant’s house – 9 months’ imprisonment with 2-year community correction order – Objectively serious offending – Sentencing judge accepted significant mitigating factors – Whether sentence manifestly excessive – Whether judge erred by regarding breach of trust as circumstance of aggravation – Whether judge made factual finding unsupported by agreed facts – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R J de Vietri with Mr M A Reardon	Victoria Legal Aid
For the Crown	Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA
COGHLAN JA:

On 9 June 2017, the applicant pleaded guilty to two charges of sexual penetration of a child under 16. On 6 July 2017, he was sentenced in the County Court as follows:

Charge Offence Maximum Sentence

1 Sexual penetration of a child under 16 (under care, supervision or authority) [Crimes Act 1958 s 45(1)] 15 years 9 months’ imprisonment and 2-year Community Correction Order (‘CCO’)

2 Sexual penetration of a child under 16 (under care, supervision or authority) [Crimes Act 1958 s 45(1)] 15 years 9 months’ imprisonment and 2-year CCO

Total effective sentence: 9 months’ imprisonment and a 2-year CCO with 100 hours of unpaid community work, and drug and alcohol, mental health and offending behaviour assessment and treatment conditions.

Pre-sentence detention declaration Nil

Section 6AAA Statement 2 years and 6 months’ imprisonment with a non-parole period of 18 months

Other relevant orders
· Forensic sample order pursuant to s 464ZF of the Crimes Act 1958

· Reporting for 15 years pursuant to the Sex Offenders Registration Act 2004

The applicant now seeks leave to appeal his sentence.

Proposed grounds of appeal

The applicant has proposed the following four grounds of appeal:

Ground 1
The total effective sentence is manifestly excessive having regard to:
The unplanned and out of character nature of the offending.
The applicant’s early plea of guilty.
The applicant’s genuine remorse.
The applicant’s previous good character.
The applicant’s good prospects of rehabilitation.
The finding that as a result of mental impairment the applicant’s moral culpability was diminished, the weight to be given specific and general deterrence was reduced and imprisonment would be more burdensome and likely damage the applicant’s mental health.
The finding of exceptional hardship in relation to the applicant’s…

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: [2017] VSCA 358
Decision Date: 5 December 2017

CaseChat Overview and Summary

In the case of Justin Jowett v The Queen, the applicant appealed against his sentence for two charges of sexual penetration of a child under 16. The applicant, under the care, supervision, or authority, had engaged in sexual acts with his step-sister in his home. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive and whether the sentencing judge erred in considering the breach of trust as an aggravating circumstance. The court also examined whether the judge made a factual finding not supported by the agreed facts. The applicant sought leave to appeal against the decision of the Victorian Court of Appeal, which dismissed his appeal against sentence.

The primary legal issues before the court involved the proportionality of the sentence and the application of aggravating and mitigating factors. The applicant argued that the sentence of 9 months' imprisonment, with a 2-year community correction order, was manifestly excessive. He contended that the sentencing judge had erred in considering the breach of trust as an aggravating factor and in making a factual finding unsupported by the agreed facts. The court had to assess whether these contentions had merit and whether they warranted a departure from the general rule that sentencing decisions are within the discretion of the trial judge.

In delivering the judgment, the court found that the sentence was not manifestly excessive, given the objective seriousness of the offending. The court acknowledged that the sentencing judge had considered significant mitigating factors, such as the applicant's guilty plea, remorse, and the impact of the sentence on him and his family. The court further determined that the judge did not err in regarding the breach of trust as an aggravating circumstance, as it was a relevant factor in the sentencing process. The court also concluded that the judge's factual finding was supported by the agreed facts. Consequently, the High Court dismissed the application for leave to appeal.

As the court dismissed the application for leave to appeal, no further orders were made. The sentence of 9 months' imprisonment, with a 2-year community correction order, remained in place. The court upheld the decision of the Victorian Court of Appeal, affirming that the sentencing judge had exercised his discretion appropriately in considering both aggravating and mitigating factors.

Orders