DPP v Meadows (Unreported, County Court of Victoria, Judge Dyer, 1 May 2017)
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CRIMINAL LAW – Appeal – Sentence – State and Commonwealth offences – Grooming – Use of carriage service – Knowingly possess child pornography – Sentence 18 months – Recognisance release order – Community corrections order – Whether order uncertain – Discrepancy between order pronounced on sentence and formally recorded – Clerical error – No uncertainty – Whether manifestly excessive – Guilty plea – Remorse – Personal circumstances – No ‘real’ victim – Gravity of offending – Aggravation – Sexually explicit language – Leave to appeal refused – Sentencing Act 1991 s 104A(1).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr R de Vietri with Mr J Van Arkadie
Victoria Legal Aid
For the Respondent
Ms K Breckweg
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
FERGUSON CJ MAXWELL P:
The applicant pleaded guilty to the Commonwealth offence of using a carriage service to groom a person under the age of 16.[1] He had four online conversations, using the apps ‘Teenchat’ and ‘Skype’, with a person he believed to be a 12-year-old female from Perth. In fact, she was a covert police officer. The applicant used sexually explicit and graphic language.
[1]Criminal Code (Cth) s 474.27(1).
In pronouncing sentence, the judge fixed a sentence of 12 months’ imprisonment, and directed that the applicant be released after having served three months of the sentence, on an undertaking to be of good behaviour for ‘the remaining nine months of the term of imprisonment’. The recognizance release order[2] signed by the judge, however, identified the good behaviour period as being for 12 months. That disparity forms the basis of ground 1.
[2]Criminal Code (Cth) s 20(1)(b).
The applicant also pleaded guilty to the State offence of knowingly possessing child pornography.[3] The pornographic images were found on the applicant’s computer following execution of a search warrant. In respect of this offence, the applicant was sentenced to a 15-month community correction order (‘CCO’), to commence upon his release from prison. Special conditions for supervision, assessment and treatment for alcohol abuse or dependency and participation in programs addressing the offending were attached to the CCO, in addition to the mandatory conditions.
[3]Crimes Act 1958 s 70(1). Section 70 was repealed by pt 2 of the Crimes Amendment (Sexual Offences) Act 2016. That Act introduced more detailed provisions dealing with sexual offences. Section 51G is the new equivalent provision to the old s 70.
The applicant seeks leave to appeal against his sentence. For the reasons which follow, the application must be refused. Nevertheless, to correct the mistake in the order, we would direct that it be amended to confirm that 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
AGLC
Meadows v The Queen [2017] VSCA 290
Case
[2017] VSCA 290
Decision Date
CaseChat Overview and Summary
Meadows was convicted of grooming a minor and possessing child pornography. He appealed the sentence imposed by the Supreme Court of South Australia, arguing that the recognisance release order was uncertain, the sentence was manifestly excessive, and the court had failed to consider several factors. The appeal was heard by the Court of Appeal, which considered whether there was an error in the recording of the sentence and whether the sentence was excessive. The Crown argued that any discrepancy between the order pronounced and the formally recorded order was a clerical error, and that the sentence was not manifestly excessive.
The Court of Appeal found that there was no uncertainty in the recognisance release order, as it was clear from the context of the proceedings what the order was. The Court also found that the sentence was not manifestly excessive, as it had taken into account the guilty plea, remorse, and personal circumstances of the offender. The Court considered the gravity of the offending, the use of sexually explicit language, and the fact that there was no ‘real’ victim. The Court found that the sentence was appropriate and did not constitute a manifestly excessive punishment. The appeal was dismissed, and leave to appeal to the High Court was refused.