PDA v The Queen - [2010] VSCA 94

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0850

PDA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2010
DATE OF JUDGMENT:	19 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 94
JUDGMENT APPEALED FROM:	R v PDA (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Pullen, 29 September 2008)

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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Sexual penetration of child under 16 – Six rolled-up counts – Persistent offending over seven episodes – Vulnerable victim – Appellant aged 37 – Total effective sentence seven years and three months’ imprisonment – Non-parole period three years and 10 months – Not manifestly excessive – Whether open to sentencing judge to find ‘exploitation and grooming’ – Whether issue sufficiently raised on plea – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L C Carter	Matthew White & Assocs
For the Crown	Mr DA Trapnell SC with Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

This is an appeal against sentence imposed in the County Court on 29 September 2008. The appellant pleaded guilty to six counts and was sentenced as follows:

Table A

COUNT

OFFENCE

NATURE OF OFFENCE

MAXIMUM

SENTENCE

CUMULATION

1

Indecent act with child under 16

See Table B

10y

10m

3m

2

Indecent act with a child under 16

See Table B

10y

14m

4m

3

Sexual penetration of a child under 16

Finger/vagina

10y

3y

10m

4

Sexual penetration of a child under 16

Tongue/vagina

10y

2y

8m

5

Sexual penetration of a child under 16

Penis/mouth

10y

4y

Base

6

Sexual penetration of a child under 16

Penis/vagina

10y

3y 6m

14m

Total effective sentence: 7 years 3 months

Non-parole period: 3 years 10 months

All six counts were ‘rolled-up’ counts. Each count is constituted by a number of particular acts which occurred during one or more of seven ‘episodes’ in the period October 2006 to April 2007. A summary of what occurred during each episode, adapted from the Crown opening, appears as an appendix to these reasons.

The following table was helpfully provided by the prosecutor to the sentencing judge. It identified the particular acts making up each of the counts, and the episode(s) in which these particular acts occurred.

Table B

COUNT

PARTICULAR ACT(S) AND EPISODE(S) IN WHICH ACT(S) OCCURRED

Count 1

Indecent acts with or in the presence of a child under 16, between 1 October 2006 and 30 June 2007 at various places

Episode 1 – Touching breasts and rubbing penis on complainant’s back

Count 2

Indecent acts with or in the presence of a child under 16, between 3 December 2006 and 30 June 2007 at various places

Episode 2 – Licking outside of vagina

Episode 3 – Masturbating himself in complainant’s presence

Episode 7 – Complainant masturbates him

Count 3

Sexual penetration of a child under 16 (finger/vagina) between 3 December 2006…

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 PDA v The Queen

Details

AGLC: PDA v The Queen [2010] VSCA 94
Case: [2010] VSCA 94
Decision Date: 19 April 2010

CaseChat Overview and Summary

The appellant, PDA, appealed against the sentence imposed by the trial judge for six counts of engaging in an indecent act with a child under 16 years of age and six counts of sexual penetration of a child under 16. The facts of the case involved a series of sexual offences against a vulnerable child over a number of years. The appeal was heard in the High Court of Australia. The primary legal issue before the Court was whether the sentence imposed by the trial judge was manifestly excessive. Additionally, the Court had to determine whether the issue of 'exploitation and grooming' was sufficiently raised on the plea to warrant consideration by the trial judge. The Court considered whether the appellant's offending was so serious that the sentence was manifestly excessive, taking into account the totality of the circumstances. The Court concluded that the sentence of seven years and three months' imprisonment, with a non-parole period of three years and 10 months, was not manifestly excessive. The Court further held that the issue of 'exploitation and grooming' was not sufficiently raised on the plea to warrant consideration by the trial judge. Consequently, the appeal was dismissed. The Court found that the sentence imposed was appropriate and that the trial judge's decision not to consider 'exploitation and grooming' as a mitigating factor was not an error of law. The Court's decision upheld the original sentence and dismissed the appeal.

Orders