| 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…
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- AGLC
- Shannon Packard (a pseudonym)[1] v The Queen [2022] VSCA 128
- Case
- [2022] VSCA 128
- Decision Date
CaseChat Overview and Summary
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.
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