[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGE:	MAXWELL P
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2022
DATE OF JUDGMENT:	31 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 103
JUDGMENT APPEALED FROM:	[2022] VCC 1188 (Judge Gucciardo)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Sexual assault of child under 16 – Two charges – Four years’ imprisonment on each charge – No cumulation – Non-parole period of 19 months – Rolled-up charges – Whether manifestly excessive – Standard sentence offence – Whether mechanistic approach adopted – Very serious offending – Position of trust as yoga teacher – Twofold breach of trust – Deliberate deception of complainant and her mother – Degrading conduct – Vulnerable victim – Serious victim impact – Importance of denunciation and general deterrence – Sentences within range – Leave to appeal refused – Lugo (a pseudonym) v The Queen [2020] VSCA 75 followed – Sentencing Act 1991 s 5A(1)(b).

CRIMINAL LAW – Appeal – Sentence – Practice and procedure – Appeal submissions departed from concessions made by defence counsel on plea – Undesirability of changes of position – Romero v The Queen (2011) 32 VR 486 referred to.

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Counsel
Applicants:		Mr R Richter QC with Mr JR Murphy
Respondent:		Ms K Hamill
Solicitors
Applicants:	Galbally & O’Bryan
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

Summary

The applicant pleaded guilty to two rolled up charges of sexual assault of a child under 16. That offence carries a maximum penalty of 10 years’ imprisonment. The applicant was sentenced to 4 years’ imprisonment on each charge, with no cumulation. A non-parole period of 19 months was fixed.
The applicant now seeks leave to appeal against the sentence on a single ground, namely, that the total effective sentence of 4 years and the non-parole period of 19 months are manifestly excessive. In my opinion, that ground is not reasonably arguable and leave to appeal must be refused.
At the time of the offending, the applicant was operating a yoga studio. The victim was a 15-year-old girl (‘S’), and the offences were committed during her second yoga class with the applicant. S’s mother was in the same yoga studio throughout the class.
During the class, S told the applicant that she was struggling with her breathing and felt congested because she had a cold. The applicant told S’s mother to do a range of poses while he assisted S with her breathing.
Over a period of approximately 30 minutes, the applicant placed his hands on S’s breasts, inside her bra, on three separate occasions (rolled…

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 Narang (a pseudonym) v The Queen

Details

AGLC: Narang (a pseudonym) v The Queen [2022] VSCA 103
Case: [2022] VSCA 103
Decision Date: 31 May 2022

CaseChat Overview and Summary

The appellant, referred to as Narang, appealed against his sentences imposed by the County Court for two charges of sexual assault of a child under 16. The Supreme Court of Victoria heard the appeal and considered the appropriate sentence for these offences. Narang was sentenced to four years’ imprisonment on each charge, with no cumulation, resulting in a non-parole period of 19 months. The court had to decide whether the sentence was manifestly excessive and if the trial judge adopted a mechanistic approach to sentencing.

The legal issues before the court were whether the sentence was manifestly excessive, whether the trial judge had adopted a mechanistic approach, and whether the appeal submissions departed from the concessions made by the defence counsel during the plea. The court examined the nature of the offences, including the appellant's position of trust as a yoga teacher, the deliberate deception of the complainant and her mother, and the degrading conduct involved. The court also considered the impact on the victim and the importance of denunciation and general deterrence. The appellant's counsel argued that the sentences were within the range of appropriate penalties for the offences.

The court found that the appellant's offending was very serious, involving a twofold breach of trust, and the impact on the victim was significant. The court held that the sentences were within the range of appropriate penalties for these offences and were not manifestly excessive. The court noted that the appeal submissions had departed from the concessions made by the defence counsel during the plea, but this did not affect the outcome of the appeal. The court followed the decision in Lugo v The Queen and noted that the Sentencing Act 1991 s 5A(1)(b) did not require a mechanistic approach to sentencing. The appeal was dismissed, and leave to appeal to the High Court was refused.

Orders