Lyon (a pseudonym) v The Queen - [2019] VSCA 251

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0184

DYLON LYON (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:	T FORREST, EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2019
DATE OF JUDGMENT:	7 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 251 First Revision: 7 November 2019
JUDGMENT APPEALED FROM:	[2018] VCC 1227 (Judge Campton)

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CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16 – Whether unfair to applicant to admit pretext call evidence – Whether admissions in pretext call obtained improperly – Whether substantial miscarriage of justice occurred – No unfairness or impropriety – Leave to appeal refused – Evidence Act 2008 ss 90, 138 – Em v The Queen (2007) 232 CLR 67, Pavitt v The Queen (2007) 169 A Crim R 452 applied; R v McNeill (Ruling No 1) (2007) 209 FLR 124, R v Kerr (Ruling No 1) [2015] VSC 64 referred to.

CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 – Course of conduct charges – Total effective sentence 7 years’ imprisonment – Non-parole period 5 years – Whether manifestly excessive – Serious offending over lengthy period – Gross breach of trust – Total effective sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S K Gardner	Wards Barristers & Solicitors
For the Respondent	Mr C B Boyce QC	Mr J Cain, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA
WEINBERG JA:

The applicant was convicted after a trial in the County Court of two charges of sexual penetration of a child under the age of 16. We shall set out the details in the table below:

Charge	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under 16 (Crimes Act1958 s 45(1))	10 years’ imprisonment	5 years’ imprisonment	Base
2	Sexual penetration of a child under 16 (Crimes Act 1958 s 45(1))	10 years’ imprisonment	4 years’ imprisonment	2 years
Total effective sentence:		7 years’ imprisonment
Non-parole period:		5 years
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		104 days’ imprisonment
Section 6AAA statement:		N/A
Other relevant orders:		· Life reporting under Sex Offender Registration Act 2004 · Forensic sample pursuant to s 464ZF of the Crimes Act 1958

Both charges were alleged against the applicant on a ‘course of conduct’ basis, the offending said to have occurred between 1 January 2008 and 31 December 2009. The applicant was acquitted of charge 3 on the indictment (sexual penetration of a child under 16).

This appeal

The applicant sought leave to appeal against conviction on one ground:

Ground 1:The trial judge erred, and a miscarriage of justice occurred as a result of the admission of the pre-text call evidence which…

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 Lyon (a pseudonym) v The Queen

Details

AGLC: Dylon Lyon (a pseudonym)[1] v The Queen [2019] VSCA 251
Case: [2019] VSCA 251
Decision Date: 7 November 2019

CaseChat Overview and Summary

Lyon (a pseudonym) appealed against his conviction and sentence for sexual penetration of a child under 16. The case was heard in the High Court of Australia, which was asked to decide on two main issues. Firstly, whether it was unfair to admit pretext call evidence and whether the admissions made during the call were obtained improperly. Secondly, whether a substantial miscarriage of justice occurred as a result of the admission of this evidence.

The court examined the law as it relates to the admission of pretext call evidence under the Evidence Act 2008. It referred to previous cases such as Em v The Queen and Pavitt v The Queen which set out the criteria for admitting such evidence. The court found that the evidence was properly admitted and did not result in any unfairness or impropriety. The High Court also considered the totality of the offending, which spanned a lengthy period and involved a gross breach of trust, and concluded that the sentence was within the appropriate range.

The High Court found that there was no unfairness or impropriety in the admission of the pretext call evidence and therefore refused Lyon leave to appeal against his conviction and sentence. The total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years was deemed to be within the appropriate range for the serious nature of the offending.

Orders