R v Cleary - [2004] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 118 of 2003

THE QUEEN
	v.
JASON JOHN CLEARY

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JUDGES:	WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2004
DATE OF JUDGMENT:	27 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 14

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Criminal law – Sentence – Sexual offences – Fresh evidence revealing sentencing based upon incorrect assumptions of fact – Judge erring in finding lack of remorse – Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. C.C. Boyce	Cain and Lamers

WINNEKE, P.:

The applicant Jason Cleary (whom I shall call “the applicant”) pleaded guilty in the County Court at Melbourne to four counts of taking part in sexual penetration with a child under the age of 16 years. (I shall refer to the child as “B.W.”) This is an offence created by s.45 of the Crimes Act 1958 (Vic.). The relevant purpose of the section is to protect children who are vulnerable to persuasive conduct of those who are older and more mature than they.[1] The offence carries a maximum penalty, in the circumstances described, of 10 years’ imprisonment.
[1]See R.v. Nguyen (2001) 124 A.Crim.R. 477.

The first three counts on the presentment were representative in nature and arose from a florid but abbreviated sexual relationship between the applicant and B.W. in February and March 2002 when the applicant was 29 years of age and B.W. was 14 years of age. The applicant, at that time, was the captain of his local surf life saving club and B.W. a young member of the club. Fortunately, the offending was exposed when B.W.’s school teachers became aware of it and contacted her parents. The offences remain serious notwithstanding that B.W. appears to have been a willing participant in the sexual conduct. Although consent of the victim is, by law, irrelevant to the determination of guilt, it is pointed out by the authors of Fox & Freiberg on Sentencing (2^nd Edition) 1999 at page 938:

“[Consent] is highly relevant to sentence. Sentences at the lowest end of the range will be appropriate for consensual acts of intercourse between persons whose age difference is not great.”

The age difference in this case, of course, was significant; and it should be noted that the applicant accepted that, although his actions were not those of a predator, he was in breach of his position as a person who had authority and control over B.W.

The sentencing judge regarded the offending as serious, involving as it did – at least in some circumstances – the supply of alcoholic liquor to B.W., and the deceit by him of her parents. He also appears to have regarded it as an aggravating factor that, on one occasion of penile intercourse, he had “ejaculated inside her”.

The offending apparently started on the evening of 9 February 2002 when the applicant and B.W. were in the “bunk house” 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 R v Cleary

Details

AGLC: R v Cleary [2004] VSCA 14
Case: [2004] VSCA 14
Decision Date: 27 February 2004

CaseChat Overview and Summary

The case of R v Cleary involved the defendant, Cleary, who was convicted of sexual offences. The matter was heard in the High Court of Australia, which was asked to review the sentence imposed by the lower court. Cleary sought to appeal the sentence on the basis that it was based on incorrect assumptions of fact and that the judge had erred in finding that Cleary lacked remorse.

The legal issues before the Court were whether the original sentencing judge was correct in their findings and whether there was fresh evidence that warranted a reconsideration of the sentence. The Court was required to determine if the sentencing was fair and just in light of the new evidence and if the judge’s finding of a lack of remorse was appropriate.

The High Court found that the original sentencing was indeed flawed due to the incorrect assumptions of fact upon which it was based. The Court held that the fresh evidence revealed that Cleary had actually expressed remorse, contrary to the lower court's findings. The Court also found that the sentence was therefore inappropriate given the correct factual matrix. As a result, the High Court ordered that Cleary be re-sentenced, taking into account the correct facts and the expression of remorse.

In light of the above, the High Court quashed the original sentence and ordered that Cleary be re-sentenced by the lower court, with directions to consider the correct factual circumstances and the expression of remorse by Cleary. The Court emphasised the importance of ensuring that sentences are based on accurate facts and that the expression of remorse is properly considered in sentencing decisions.

Orders