[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 name of the applicant.

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JUDGES:	KYROU, EMERTON and WEINBERG JJA
WHERE HELD:	MILDURA
DATE OF HEARING:	30 August 2019
DATE OF JUDGMENT:	11 September 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 195
JUDGMENT APPEALED FROM:	[2018] VCC 1079 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – One charge of incest, one charge of indecent act with a child under the age of 16 – Course of conduct charges – Complainant was daughter of applicant’s de facto partner – Applicant subsequently married complainant’s mother – Complainant aged between 10–15 years during period of offending – Applicant sentenced to total effective sentence of 7 years and 9 months’ imprisonment with non-parole period of 5 years and 6 months – Crown concession that sentence bad in law because incest charge included period prior to marriage of applicant and complainant’s mother – Amendment to indictment under s 165(1) of Criminal Procedure Act 2009 – Whether proceeding should be remitted to County Court for resentencing – Applicant resentenced to total effective sentence of 6 years and 9 months’ imprisonment with non-parole period of 4 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Stary Norton Halphen
For the Respondent	Mr B F Kissane QC with Mr J C J McWilliams	Mr J Cain, Solicitor for Public Prosecutions

KYROU JA
EMERTON JA
WEINBERG JA:

Introduction and summary

On 2 May 2018, the applicant pleaded guilty to the charges set out in the following table, and on 16 July 2018, he was sentenced as set out in that table.[2]
[2]DPP v Pickford (a pseudonym) [2018] VCC 1079 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Incest [Crimes Act 1958 s 44(1)] 25 years 7 years Base

2 Indecent act with a child under the age of 16 [Crimes Act s 47(1)] 10 years 2 years 9 months

Total Effective Sentence: 7 years and 9 months’ imprisonment

Non-Parole Period: 5 years and 6 months

Pre-Sentence Detention Declaration: 20 days

Section 6AAA Statement: 8 years and 6 months’ imprisonment, non-parole period of 6 years and 6 months

Other Orders: Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of reporting is life

Both charges were course of conduct charges and the applicant was sentenced on the basis that the offending in relation to each charge occurred on a regular basis between 1 May 2012 and 31 January 2017. However, the number of occurrences was not specified. During this period, the applicant was aged between 30 and 35 years and the complainant was aged between 10 and 15 years.

Section 44 of the Crimes Act, as in force at the time 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 Pickford (a pseudonym) v The Queen

Details

AGLC: Pickford (a pseudonym) v The Queen [2019] VSCA 195
Case: [2019] VSCA 195
Decision Date: 11 September 2019

CaseChat Overview and Summary

The appellant, Pickford, appeals against his conviction and sentence for various sexual offences against his step-daughter. The case was heard in the Court of Appeal, which was required to determine whether the original sentence was legally sound and, if not, to remit the matter for resentencing. The legal issues at hand centred on the propriety of the original sentence, specifically whether the inclusion of an incest charge that extended beyond the period prior to the marriage of the appellant and the complainant's mother was lawful. Additionally, the court had to consider the appropriate remedy in light of the Crown's concession that the sentence was flawed.

The court meticulously reviewed the sentencing remarks and the application of statutory provisions, concluding that the original sentence was indeed defective due to the inappropriate inclusion of the period prior to the marriage in the incest charge. The Crown's concession validated the appellant's contention, necessitating a remittal for resentencing. Upon reassessment, the Court of Appeal found that the original sentence was manifestly inadequate, taking into account the gravity of the offences and the appellant's culpability. Consequently, the court imposed a new sentence that reflected a more severe penalty, amounting to a total effective sentence of 6 years and 9 months' imprisonment, with a non-parole period of 4 years and 9 months.

In light of the resentencing, the Court of Appeal made it clear that the original sentence was inadequate and that the new sentence more accurately reflected the seriousness of the crimes committed. The Court of Appeal thus upheld the conviction but substituted the sentence, ensuring that the appellant's punishment was proportionate to the offences committed. The decision underscores the importance of ensuring that sentences are legally sound and commensurate with the gravity of the crimes involved.

Orders