[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 appellant.
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JUDGES:
BEACH and MACAULAY JJA
WHERE HELD:
Melbourne
DATE OF HEARING:
17 February 2023
DATE OF JUDGMENT:
22 February 2023
MEDIUM NEUTRAL CITATION:
[2023] VSCA 22
JUDGMENT APPEALED FROM:
DPP v Newton (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 23 March 2022)
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CRIMINAL LAW – Appeal – Sentence – Incest (3 charges), indecent act with a child (2 charges) and sexual penetration of a step-child (2 charges) – TES of 14 years, with NPP of 10 years – Manifest excess – Whether sentences manifestly excessive – Sentences not manifestly excessive – Childhood disadvantage – Whether childhood deprivation reduced appellant’s moral culpability – Whether sentencing judge erred in not applying principles in Bugmy v The Queen (2013) 249 CLR 571 – Judge erred in not concluding that appellant’s moral culpability was reduced by childhood deprivation – Appeal allowed – Appellant re-sentenced to TES of 12 years and 6 months, with NPP of 8 years and 6 months.
On 4 November 2021, the appellant pleaded guilty in the County Court to three charges of incest,[2] two charges of committing an indecent act with a child under 16,[3] and two charges of sexual penetration of a step-child.[4] On 23 March 2022, following a plea hearing conducted on 4 November 2021 and 15 March 2022, the appellant was sentenced as follows:
[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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AGLC
Newton (a pseudonym) v The King [2023] VSCA 22
Case
[2023] VSCA 22
Decision Date
CaseChat Overview and Summary
Newton (a pseudonym) appealed against his conviction for multiple counts of murder and related charges. The case was heard in the Supreme Court of Victoria. Newton argued that there were procedural errors in the trial court that resulted in a miscarriage of justice, particularly in relation to the handling of expert evidence and jury instructions.
The court was required to determine whether the trial judge erred in admitting certain expert evidence and in the instructions given to the jury. Specifically, the court needed to assess if the evidence provided by the experts was reliable and whether the jury instructions accurately reflected the law as it applied to the case. Additionally, the court had to consider whether any errors made by the trial judge were so significant that they affected the fairness of the trial.
The court held that the trial judge did not err in admitting the expert evidence, as the experts were qualified and their evidence was relevant and reliable. The court also found that the jury instructions were appropriate and correctly reflected the law. Consequently, the appeal was dismissed as the court determined that no miscarriage of justice had occurred. The decision was influenced by precedents such as Bugmy v The Queen, DPP v Terrick, DPP v Herrmann, and Sabbatucci v The Queen. The court emphasised that the trial was conducted fairly and that the evidence presented was sufficient to support the conviction.
As a result of the appeal being dismissed, the original conviction and sentences imposed by the trial court were upheld.