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Nelson (a pseudonym) v The Queen

Nelson (a pseudonym) v The Queen

Case [2020] VSCA 36 2 March 2020

Appeal

Sexual assault of child under 16

Use of carriage service to transmit indecent communication to child under 16

Contravention of family violence safety notice

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0003

WAYNE NELSON (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[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 name of the applicant.

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JUDGES:	NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2020
DATE OF JUDGMENT:	2 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 36
JUDGMENT APPEALED FROM:	[2018] VCC 2135 (Judge Marich)

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CRIMINAL LAW – Appeal – Sentence – Incest – Sexual penetration of step-child – Sexual assault of child under 16 – Sexual activity in presence of child under 16 – Use of carriage service to transmit indecent communication to child under 16 – Contravention of family violence safety notice – Plea of guilty – Applicant sentenced to 10 years and 9 months’ imprisonment with non-parole period of 8 years – Whether individual sentences and total effective sentence manifestly excessive – Qualified remorse – Vulnerable complainant – Current sentencing practices considered – Sentence within range – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr H A Rattray	Balmer & Associates
For the Crown	Mr P L Bourke	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA

WEINBERG JA:

On 28 November 2018, the applicant, ‘Wayne Nelson’, pleaded guilty in the County Court at Melbourne to the charges set out in the table below. He was sentenced as follows:

Charge on Indictment Offence Maximum Sentence
Cumulation

1. Sexual penetration of a step‑child [s 50D of the Crimes Act 1958] 25 years 6 years and 9 months Base

2. Sexual penetration of a step‑child [s 50D of the Crimes Act 1958] 25 years 6 years and 9 months 2 years and 3 months

3. Sexual assault of a child under the age of 16 [s 49D of the Crimes Act 1958] 10 years 3 years and 3 months 12 months

4. Sexual activity in the presence of a child under the age of 16 [s 49F of the Crimes Act 1958] 10 years 2 years and 3 months 9 months

5. Use carriage service to transmit indecent communication to a person under 16 [s 474.27A Criminal Code Act 1995 (Cth)] 7 years 18 months –

Summary offence

– Contravention of a family violence safety notice [s 37(2) of the Family Violence Protection Act 2008] 2 years 7 days –

Total effective sentence: 10 years and 9 months

Non-parole period: 8 years

Pre-sentence detention declared: 253 days

Section 6AAA statement: 13 years and 6 months’ imprisonment with a non-parole period of 10 years.

Other relevant orders: Applicant sentenced as a serious sexual offender on charges 3 and 4;
order made for the taking of a forensic sample pursuant to section 464ZF of the Crimes Act 1958;
and ordered to comply with the requirements of the Sex Offenders Registration Act 2004 for life.

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.

Continue reading Nelson (a pseudonym) v The Queen

Details

AGLC: Nelson (a pseudonym) v The Queen [2020] VSCA 36
Case: [2020] VSCA 36
Decision Date: 2 March 2020

CaseChat Overview and Summary

The appellant, Nelson (a pseudonym), has appealed against his conviction and sentence for multiple sexual offences involving his step-child. The appeal was heard by the High Court of Australia. Nelson pleaded guilty to charges including incest, sexual penetration of a child under 16, sexual assault of a child under 16, sexual activity in the presence of a child under 16, using a carriage service to transmit an indecent communication to a child under 16, and contravention of a family violence safety notice. He was sentenced to 10 years and 9 months' imprisonment, with a non-parole period of 8 years.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. Nelson argued that the individual sentences and the total effective sentence were too harsh, given his qualified remorse and the vulnerable nature of the complainant. The court had to consider the current sentencing practices for such offences and whether the sentence was within the appropriate range.

The court considered the gravity of the offences and the need for deterrence and denunciation, while also taking into account the appellant's remorse and the vulnerable position of the complainant. It concluded that the sentence was within the appropriate range for the serious nature of the crimes committed. The court found no basis to interfere with the trial judge's sentencing discretion, and therefore refused leave to appeal.

The High Court's decision confirms the trial judge's sentence as appropriate and within current sentencing practices. The appeal was dismissed, and the original sentence stands.

Orders