Perry v The King - [2023] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0012

BENJAMIN PERRY	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2023
DATE OF JUDGMENT:	12 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 218
JUDGMENT APPEALED FROM:	[2022] VCC 2289 (Judge Murphy)

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CRIMINAL LAW – Appeal – Sentence – Attempted rape, sexual assault and common assault – Sentenced to 3 years and 9 months’ imprisonment with non-parole period of 2 years – Whether sentence manifestly excessive – Sentences imposed on charge of sexual assault and two charges of common assault manifestly excessive – Application for leave to appeal granted – Appeal allowed – Applicant re-sentenced.

Lieu v The Queen (2016) 263 A Crim R 173 applied. Stafford v The King [2022] VSCA 229, DPP v Drake [2019] VSCA 293, DPP v Warnakulasuriye [2019] VCC 2070, discussed.

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Counsel
Applicant:		Mr J Anderson with Ms S Stafford
Respondent:		Ms J Warren
Solicitors
Applicant:	Sarah Pratt & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
WALKER JA:

On 8 December 2022, the applicant, Benjamin Perry, pleaded guilty to one charge of attempted rape, one charge of sexual assault and two charges of common assault. The events leading to those charges occurred on two different dates. The applicant was 22 years old at the time of the offending, which occurred in November 2019 and January 2020. On 14 December 2022 the applicant was convicted and sentenced as follows:[1]
[1]DPP v Perry [2022] VCC 2289 (‘Reasons’).

Charge on Indictment

Offence

Max Penalty

Sentence

Cumulation

1 Attempted rape[2] 20 years 3 years Base

2 Common assault[3] 5 years 12 months 6 months

3 Sexual assault[4] 10 years 9 months 3 months

4 Common assault[5] 5 years 6 months Nil

Total Effective Sentence: 3 years and 9 months’ imprisonment

Non-Parole Period: 2 years

Pre-sentence Detention Declared: 253 days

Section 6AAA Statement:
Total Effective Sentence 5 years

Non-Parole Period 3 years

[2]Contrary to Crimes Act 1958, ss 38(1) and 321M.
[3]Contrary to common law.
[4]Contrary to Crimes Act 1958, s 40.
[5]Contrary to common law.

The applicant now seeks leave to appeal against sentence,[6] on two proposed grounds,[7] as follows:
Ground 1 – The sentences imposed on the individual counts and the total effective sentence and the non-parole period are manifestly excessive.
Ground 2 – The total effective sentence, the non-parole period and/or the orders for cumulation on charges 2 and 3 infringe the principle of totality.
[6]The applicant also sought an extension of time within which to file his notice of application for leave to appeal. That application was not opposed and was granted by a judicial registrar on 24 April 2023.
[7]We shall refer to the proposed grounds as grounds, for convenience. We note that originally the applicant had sought leave to appeal on a third ground, alleging specific error by the sentencing judge, but that ground was abandoned at the hearing of the…

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 Perry v The King

Details

AGLC: Perry v The King [2023] VSCA 218
Case: [2023] VSCA 218
Decision Date: 12 September 2023

CaseChat Overview and Summary

Perry appealed against his conviction and sentence for attempted rape, sexual assault and common assault. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the sentence imposed on Perry was manifestly excessive. The court had to consider the principles set out in Lieu v The Queen and the recent cases of Stafford v The King, DPP v Drake, and DPP v Warnakulasuriye in determining the appropriate sentence.

The court found that the sentences imposed on Perry for the charge of sexual assault and the two charges of common assault were manifestly excessive. It was noted that the sentencing judge had failed to consider all the relevant factors in determining the appropriate sentence, including the impact of the crimes on the victims and the need for general deterrence. The court held that the sentences were manifestly excessive and granted leave to appeal. The appeal was allowed, and Perry was re-sentenced.

The court re-sentenced Perry to a term of imprisonment of 2 years and 6 months with a non-parole period of 1 year and 3 months. The court considered the principles of proportionality and deterrence in determining the appropriate sentence. It was held that the new sentence was proportionate to the seriousness of the offences and would serve as an appropriate deterrent to others who might commit similar offences.

This case highlights the importance of considering all relevant factors in determining an appropriate sentence and the need for proportionality and deterrence in sentencing. The court’s decision in this case will provide guidance to sentencing courts in similar cases in the future.

Orders