Page (a pseudonym) v The Queen - [2021] VSCA 364

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0238

SHAUN PAGE (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as not to prejudice the proper administration of justice.

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JUDGES:	T FORREST JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2021
DATE OF JUDGMENT:	21 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 364
JUDGMENT APPEALED FROM:	[2020] VCC 1528 (Judge Hogan)

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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL
PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Sexual penetration of a child under 16 – Sexual assault of a child under 16 – Grooming for sexual conduct with a child under 16 – Indecent acts with or in the presence of a child under 16 – Persistent contravention of a family violence order – Whether judge erred in diluting the weight to be given to the applicant’s character − Whether sentence manifestly excessive – SD v The Queen (2013) 39 VR 487, Torrefranca v The Queen [2021] VSCA 157, Ryan v The Queen (2001) 206 CLR 267, Bugmy v The Queen (2013) 249 CLR 571 considered – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Wareham	Criminal Lawyers Geelong
For the Respondent	Mr B Sonnet	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA

MACAULAY AJA:

Introduction

The applicant pleaded guilty in the County Court to sexual penetration of a child under 16 (Charge 1),[2] four charges of indecent act with or in the presence of a child under 16 (Charges 2, 3, 5 and 6),[3] grooming for sexual conduct with a child under 16 (Charge 4),[4] and sexual assault of a child under 16 (Charge 7).[5] He also pleaded guilty to one charge laid on a separate indictment of persistent contravention of a family violence order (‘IVO breach’).[6] The seven charges of sexual offences occurred against four separate children under 16 years of age.
[2]Contrary to s 45 of the Crimes Act 1958 (‘Crimes Act’).
[3]Contrary to s 47(1) of the Crimes Act.
[4]Contrary to s 49B of the Crimes Act.
[5]Contrary to s 49D(1) of the Crimes Act.
[6]Contrary to s 125A of the Family Violence Protection Act 2008.

The sentences imposed by a judge of the County Court[7] on 17 September 2020 are set out in the table below.
[7]DPP v [Page] [2020] VCC 1528 (‘Reasons’).

Sexual offence charges Offence Maximum Penalty Sentence Cumulation

1 Sexual penetration of a child under 16 10 years 4 years Base

2 Indecent act with or in the presence of a child under 16 10 years 2 ½ years 10 months

3 Indecent act with or in the presence of…

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 Page (a pseudonym) v The Queen

Details

AGLC: Page (a pseudonym) v The Queen [2021] VSCA 364
Case: [2021] VSCA 364
Decision Date: 21 December 2021

CaseChat Overview and Summary

Page, the appellant, sought leave to appeal against his sentence imposed by the County Court following his conviction for multiple serious sexual offences against a child under the age of 16. The Court of Appeal considered the application, assessing whether the judge erred in the weight given to the appellant's character and whether the sentence was manifestly excessive. The appellant argued that the trial judge did not appropriately consider his good character and that the sentence was disproportionate to the crimes committed.

The central legal issues revolved around the appropriate weight to be assigned to the appellant's good character in the sentencing process and whether the sentence imposed was manifestly excessive. The appellant contended that the trial judge erred in diluting the significance of his good character and that the resultant sentence was disproportionate. The Crown argued that the sentence was fair and just, taking into account the severity of the offences and the need to protect the community.

The Court of Appeal held that the trial judge did not err in the weight given to the appellant's character, as the judge appropriately balanced the appellant's good character against the egregious nature of the offences. The Court found that the sentence was proportionate to the crimes and did not constitute a manifestly excessive punishment. The Court of Appeal noted the severity of the sexual offences against a vulnerable child and the importance of protecting the community from such behaviour. The Court dismissed the application for leave to appeal, affirming the original sentence imposed by the County Court.

The Court of Appeal refused the appellant's application for leave to appeal against his sentence.

Orders