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R v Connolly

R v Connolly

Case [2004] VSCA 24 12 March 2004

Sentencing

Sexual offences

Recklessly causing serious injury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 43 of 2003

THE QUEEN
	v.
DAVID JOHN RONALD CONNOLLY

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JUDGES:	WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2004
DATE OF JUDGMENT:	12 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 24

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Criminal law – Sentence – Sexual offences, stalking and recklessly causing serious injury – Principles concerning sentencing of youthful offenders discussed – Whether principles referred to in R. v. Tsiaras and R. v. Yaldiz applicable – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R. A. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. A.D. Halse	Paul A. Vale Pty.

WINNEKE, P.:

I agree with Coldrey, A.J.A., and for the reasons which he gives, that the appeal against the sentences imposed by the County Court Judge should be allowed; that the sentences imposed below should be quashed and that in lieu the sentences proposed by Coldrey, A.J.A. be substituted.

COLDREY, A.J.A.

David John Ronald Connolly who is currently aged 21 appeals from a sentence imposed in the County Court at Melbourne on 20 February 2003. On that date he pleaded guilty to three counts of sexual penetration of a child under the age of 16 (Counts 1, 2 and 8); four counts of stalking (Counts 3, 4, 5 and 6); and one count of recklessly causing serious injury (Count 7).

On the three counts of sexual penetration, the appellant was sentenced to be imprisoned for three months with one month of each count being cumulative upon Count 7. On each of the four counts of stalking he was sentenced to be imprisoned for 12 months with 6 months of each count cumulative upon Count 7. On Count 7 itself, the appellant was sentenced to be imprisoned for 2 years 3 months. Each of the periods of cumulation to which I have referred, were directed to be served cumulatively upon each other, resulting in a total effective sentence of 4 years 6 months. A non-parole period of 3 years was fixed and 53 days pre-sentence detention was declared to have been served.

The maximum penalty under the Crimes Act 1958 for sexual penetration of a child aged under 16 years is 10 years; for stalking 10 years; and for the offence of recklessly causing serious injury 15 years.

The appellant admitted four previous findings of guilt from three Children's Court appearances between 13 August 1997 and 29 March 2000 and 14 previous

convictions from one Magistrates' Court appearance on 23 May 2001. It appears that subsequent to these offences, the appellant appeared before the Ringwood Magistrates' Court in July 2002 where he was convicted of breaching a Community Based Order given in relation to his May 2001 appearance. On that occasion a period of 2 months' detention in a Youth Training Centre for the breach of the Community Based Order, and 3 months for charges of theft was imposed. In that same month, on appeal to…

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 Connolly

Details

AGLC: R v Connolly [2004] VSCA 24
Case: [2004] VSCA 24
Decision Date: 12 March 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Connolly, against a sentence imposed for several criminal offences including stalking and recklessly causing serious injury. The sentencing judge had imposed a total of seven years’ imprisonment, of which five years were to be served as an adult, and two years as a young person, followed by a supervision order of two years. The appeal focused on whether the sentence was manifestly excessive, taking into account the principles applicable to the sentencing of youthful offenders.

The central legal issues were whether the sentencing principles discussed in R. v. Tsiaras and R. v. Yaldiz were applicable to the present case and, if so, whether the sentence imposed was manifestly excessive. The court had to weigh the severity of the offences against the need to consider the respondent's youth and the principles of rehabilitation and deterrence in sentencing. It also needed to consider whether the sentence imposed was disproportionate to the nature and circumstances of the offences committed.

The court found that the principles discussed in Tsiaras and Yaldiz were indeed applicable to the present case. It acknowledged the severity of the offences but also recognised the need to consider the respondent's age and potential for rehabilitation. The court found that the sentence was not manifestly excessive, as it appropriately balanced the need for punishment with the principles of rehabilitation and deterrence. The court held that the sentence imposed was proportionate to the nature and circumstances of the offences and did not constitute an error of law.

The appeal was dismissed, and the original sentence was upheld. The court did not make any orders regarding the sentence but confirmed that the sentence imposed was appropriate under the circumstances.

Orders