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Packard (a pseudonym) v The Queen

Packard (a pseudonym) v The Queen

Case [2022] VSCA 128 30 June 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0078

SHANNON PACKARD (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 applicant’s name.

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JUDGES:	PRIEST, KYROU and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2022
DATE OF JUDGMENT:	30 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 128
JUDGMENT APPEALED FROM:	DPP v Packard (a pseudonym) (Unreported, County Court, Judge Pullen, 11 November 2016)

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CRIMINAL LAW – Appeal – Sentence – Fresh evidence – Applicant convicted of charges of incest and possession of child pornography – Sentenced as male – Gender identity raised on plea in relation to onerousness of imprisonment – Commenced gender transition while in prison – Alleged victim of rape, assault, sexual assault and sexual harassment while in prison – Whether transition and events in prison demonstrate true significance of facts in existence at time of sentence – Offending of a serious and disturbing kind – No reasonable prospect of less severe sentence – Application for leave to appeal refused – Criminal Procedure Act 2009, s 280.

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Counsel
Applicant:		Ms CA Boston with Ms H Canham
Respondent:		Mr CB Boyce QC
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Substantially for the reasons advanced by Kyrou and Walker JJA, I would grant an extension of time, but refuse leave to appeal against sentence. I wish, however, to make some observations of my own with respect to fresh or new evidence. In so doing, I am relieved from the obligation of recapitulating to any great extent the factual background, the ‘fresh’ evidence relied upon by the applicant or the submissions of the parties, all of which have been set out in detail in the joint reasons.
The thrust of the applicant’s case is that ‘fresh’ evidence demonstrates that, as a result of the applicant’s ‘gender identity’, the burden of incarceration has been much greater than was anticipated at the time of sentence. In particular, it is contended that the applicant’s gender identity has resulted in imprisonment being much more onerous than for prisoners whose gender identity matches their anatomical sex at birth, first, because the applicant has been the victim of rape, physical assaults and harassment and bullying in custody; and, secondly, because the applicant’s willingness to assist the authorities to bring the perpetrators to justice has resulted in further harassment, isolation, fear and anxiety.
By virtue of s 281(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), when a person sentenced for an offence by an originating court[2] challenges the sentence, this Court’s intervention is warranted only if satisfied that there is ‘an error in the sentence first imposed’.[3]
[2]That is, the County Court in its original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction: see CPA, s 3(1).
[3]And…

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 Packard (a pseudonym) v The Queen

Details

AGLC: Shannon Packard (a pseudonym)[1] v The Queen [2022] VSCA 128
Case: [2022] VSCA 128
Decision Date: 30 June 2022

CaseChat Overview and Summary

The applicant, identified only as Packard, sought leave to appeal against his sentence following a conviction for charges of incest and possession of child pornography. The case was heard in the High Court of Australia. Packard's appeal centred on the argument that the sentence imposed was too severe given the circumstances that had arisen since his conviction, specifically his gender transition and the mistreatment he experienced in prison.

The primary legal issue before the court was whether the new evidence of Packard's gender transition and the subsequent adverse experiences in prison constituted fresh evidence that demonstrated the true significance of the facts in existence at the time of the original sentencing hearing. The court needed to determine if these developments were significant enough to warrant a reconsideration of the sentence under the criteria set out in the Criminal Procedure Act 2009.

The court held that while the evidence of Packard's gender transition and the mistreatment he faced in prison were relevant, they did not sufficiently alter the nature of the offences or the appropriate penalty. The court reasoned that the offences were of a serious and disturbing kind, and there was no reasonable prospect that a less severe sentence would be appropriate. Consequently, the court found that the application for leave to appeal should be refused.

Orders