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Lyons v The Queen

Lyons v The Queen

Case [2019] VSCA 242 29 October 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0251

CHRISTOPHER GREGORY LYONS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 October 2019
DATE OF JUDGMENT:	29 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 242
JUDGMENT APPEALED FROM:	DPP v Lyons [2018] VCC 1716

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CRIMINAL LAW – Application for leave to appeal against sentence – Access and transmission of child pornography offences – Proposed grounds that erroneously sentenced as serious sex offender, sentence manifestly excessive, and cumulation offends the totality principle – Leave granted but appeal dismissed as no different sentence should be imposed – Serious sex offender declaration an error – Sentence justified by seriousness of offending and current participation in custody in sex offender program – Cumulation justified by distinct conduct constituting the charges – Sentencing Act 1991 ss 6D, 6E – Criminal Procedure Act 2009 s 281(1)(a) – Gillespie v The Queen [2018] VSCA 151 applied.

CRIMINAL LAW – Sentencing – Sentenced as serious sex offender on Commonwealth offences – Serious offender provisions not applicable to Commonwealth offences – Leave granted and order amended – Sentencing Act 1991 s 6F – Criminal Procedure Act 2009 s 325 - McKenzie v The Queen [2018] VSCA 34 cited.

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APPEARANCES:	Counsel	Solicitors
Applicant	Mr P J Smallwood with Mr J Connolly	Leanne Warren & Associates
Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WHELAN JA:

On 17 October 2018 the applicant pleaded guilty to two Commonwealth offences; using a carriage service to access child pornography, and using a carriage service to transmit child pornography.[1] An additional offence of soliciting child pornography[2] was to be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for each of the charged offences was 15 years’ imprisonment.
[1]The relevant provision of the Criminal Code (Cth) at the time was s 474.19(1).
[2]Also contrary to s 474.19(1) of the Criminal Code (Cth).

On 19 October 2018 a judge in the County Court sentenced the applicant to a term of 18 months’ imprisonment on each of the charged offences.[3] He directed that the sentence on the first charge commence on the day of sentence, and that the sentence on the second charge commence one year later, on 18 October 2019. Thus, the total effective sentence imposed was 2 years 6 months’ imprisonment. The judge further ordered that the applicant be released on a recognizance release order to be of good behaviour for four years after serving 18 months of the sentence of imprisonment.
[3][2018] VCC 1716 (‘Reasons’).

The applicant now seeks leave to appeal on three proposed grounds. They are:

(1)The sentencing judge erred by sentencing the applicant as a serious sexual offender.
(2)The sentence imposed on charge 2 is manifestly excessive.
(3)The order that the sentence imposed on charge 2 commence on 18 October 2019, which has the effect of requiring the applicant to serve 12 months of the 18…

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 Lyons v The Queen

Details

AGLC: Lyons v The Queen [2019] VSCA 242
Case: [2019] VSCA 242
Decision Date: 29 October 2019

CaseChat Overview and Summary

The appellant in this case, Lyons, was convicted of multiple offences related to the access and transmission of child pornography. The case was heard in the Victorian Court of Appeal, where Lyons applied for leave to appeal against his sentence. The primary legal issues were whether the sentence was erroneously imposed under the serious sex offender provisions, whether it was manifestly excessive, and whether the cumulation of the sentences violated the totality principle.

The court granted leave to appeal but ultimately dismissed the appeal. The court found that while the serious sex offender declaration was an error, the sentence was justified due to the gravity of the offences and the appellant’s current participation in a custody sex offender program. The court also found that the cumulation of sentences was justified as the charges stemmed from distinct conduct. In reaching these conclusions, the court applied relevant provisions from the Sentencing Act 1991 and the Criminal Procedure Act 2009, and cited relevant precedents such as Gillespie v The Queen and McKenzie v The Queen.

Regarding the serious offender provisions, the court clarified that these provisions are not applicable to Commonwealth offences. Consequently, the court granted leave to appeal and amended the order, ensuring compliance with the Sentencing Act 1991 and the Criminal Procedure Act 2009. The court cited McKenzie v The Queen to support its decision.

The final orders of the court were to amend the sentence to correct the serious offender declaration error, while affirming that the overall sentence was appropriate and the cumulation of sentences was justified.

Orders