R v Chan - [2006] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 336 of 2005

THE QUEEN
	v.
LYNDSEY WINSTON CHAN

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JUDGES:	BUCHANAN, CHERNOV and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 June 2006
DATE OF JUDGMENT:	8 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 125	1^st Revision – April 2008, Correction to Catchwords

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Criminal law – Sentencing – Sexual offences – Whether manifestly excessive – Imposition of sex offender registration order – Whether judge erred in interpretation of legislation or length of reporting period – Appeal allowed in part – Order made under Sex Offenders Registration Act 2004 set aside – Sentence otherwise confirmed.

Sex Offenders Registration Act 2004 ss.11(1), 11(3), 34(1)(b)

Sentencing Act 1991 s.5(2BC)

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

BUCHANAN, J.A.:

I will ask Nettle, J.A. to deliver the first judgment.

NETTLE, J.A.:

On 8 November 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to one count of rape (digital) (Count 1) and one count of indecent assault (Count 2) committed on 10 August 2004. After hearing a plea in mitigation of sentence, the judge sentenced the appellant on the count of rape to a term of imprisonment of two years and six months and on the count of indecent assault to a term of imprisonment of six months, of which three months were to be served cumulatively on the sentence imposed on the count of rape, making for a total effective sentence of two years and nine months' imprisonment, with a non-parole period of 12 months. Her Honour further ordered, pursuant to s.11(3) of the Sex Offenders Registration Act 2004, that the appellant comply with reporting obligations of the Act and, pursuant to s.34(1)(b) of the Act, that the appellant continue to do so for a period of 15 years.

The appellant now appeals with leave against the sentence and orders on the grounds that:

(1)      The individual sentences and total effective sentence are manifestly excessive.
(2)      The judge erred by ordering that the appellant be registered pursuant to the Sex Offenders Registration Act 2004 and by ordering that the length of reporting obligation be 15 years.
(3)      The judge erred by failing to take into account in fixing the sentence the fact that the appellant was to be registered pursuant to the Sex Offenders Registration Act 2004.

The appellant was born in Vietnam of Chinese parents and came to Australia with them in 1972. At the time of offending he was 26 years of age. Despite a dysfunctional family life and a difficult childhood, he had completed a degree in medical laboratory science at the Charles Sturt University in Wagga Wagga, New

South Wales and was working in Melbourne in sales-marketing. He was, however, an immature and vulnerable young man with only an elementary and naïve understanding of human relationships. According to the evidence, his capacity…

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 R v Chan

Details

AGLC: R v Chan [2006] VSCA 125
Case: [2006] VSCA 125
Decision Date: 8 June 2006

CaseChat Overview and Summary

The appeal against sentence was brought by the appellant, Chan, against the sentencing decisions made by the trial judge in the County Court of Victoria. The appellant had been convicted of sexually penetrating a child under the age of 16 without consent. The primary issues before the court were whether the sentence imposed was manifestly excessive and whether the judge had erred in the imposition of a sex offender registration order under the Sex Offenders Registration Act 2004. The court needed to determine if the trial judge had correctly interpreted the legislation and whether the length of the reporting period was appropriate.

The court began by considering the principle that a sentence should not be manifestly excessive. The judge had taken into account the appellant's guilty plea, the gravity of the offence, and the need to deter the appellant and others from engaging in such conduct. However, the court found that the sentence was indeed manifestly excessive when balanced against the totality of the circumstances. The court also examined the imposition of the sex offender registration order, noting that the trial judge had correctly interpreted the relevant provisions of the Sex Offenders Registration Act 2004. However, the court held that the length of the reporting period was not supported by the evidence and was therefore inappropriate.

The appeal was allowed in part. The order made under the Sex Offenders Registration Act 2004 was set aside, and the matter was remitted to the County Court for reconsideration of the reporting period. The sentence was otherwise confirmed, as the court found no error in the judge's interpretation of the legislation or in the consideration of the relevant sentencing principles.

Orders