R v Elston - [1999] VSCA 137

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 116 of 1999

THE QUEEN

ADAM KING ELSTON

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SHEPPARTON
DATE OF HEARING:	19 August 1999
DATE OF JUDGMENT:	19 August 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 137

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Criminal Law – Five counts indecent assault and one count indecent exposure – Sentence – Whether manifestly excessive – Partial cumulation – Whether statutory prima facie rule of concurrency displaced – Sentencing Act, s.16(1) – Totality.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D. Grace, Q.C.	Stary George Myall

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment in this application.

CHERNOV, J.A.:

On 18 May 1999, the applicant, who is now aged 29, pleaded guilty in the County Court at Melbourne to five counts of indecent assault contrary to s.39(1) of the Crimes Act 1958 and one count of the summary offence of indecent exposure contrary to s.7(1)(c) of the Vagrancy Act 1966. The offences had been allegedly committed by him in the early hours of 15 October 1998 against a 17-year-old girl. After hearing a plea in mitigation of sentence made on the applicant's behalf, his Honour sentenced him on 26 May 1999 to an effective total sentence of 20 months' imprisonment with a non-parole period of 12 months and declared that seven days be reckoned as having been served as pre-sentence detention.
By notice of application for leave to appeal against sentence dated 31 May 1999, the applicant seeks leave to appeal against the sentences on grounds that can be divided into two categories:

(1) Grounds 1 - 4, which relate to the claim that the sentences are manifestly
excessive;
(2) Ground 5, which attacks cumulation.

The relevant circumstances surrounding the commission of the offences are not in dispute and can be briefly stated. On the morning of 14 October 1998, the complainant became involved in an argument with her mother with whom she lived, as a result of which she was effectively told to leave home. That evening she visited her boyfriend. She left him late in the evening and travelled by taxi to the vicinity of the Essendon railway station, arriving there at about midnight. There she made several telephone calls from a public telephone box, one of them being an unsuccessful attempt at reconciliation with her mother. She was upset at being unable to achieve the reconciliation and sat down in the doorway of a butcher's shop.
The applicant had spent the evening of 14 October 1998 visiting separately with each of his two girlfriends, leaving the house of the second around midnight. Whilst driving in the direction of his home he noticed the complainant standing in the public telephone box. He parked his car, walked on the opposite side of the road to the complainant and went to the toilet in a laneway. The applicant then…

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 Elston

Details

AGLC: R v Elston [1999] VSCA 137
Case: [1999] VSCA 137
Decision Date: 19 August 1999

CaseChat Overview and Summary

The case of R v Elston involved the defendant who was charged with five counts of indecent assault and one count of indecent exposure. The dispute arose as to the appropriate sentence to be imposed on the defendant following his conviction on all counts. The matter was heard in the relevant Australian court which was tasked with determining whether the sentence imposed was manifestly excessive and the appropriate approach to sentencing for multiple offences.

The court was required to decide the extent to which partial cumulation of sentences was permissible and whether the statutory prima facie rule of concurrency had been displaced by the court's consideration of the totality of the offending. This involved a careful analysis of the relevant statutory provisions, in particular Section 16(1) of the Sentencing Act, which provides guidance on the principles of totality and the balancing of aggravating and mitigating factors.

In delivering its judgment, the court considered the totality of the offending and the particular circumstances of the defendant. The court held that the sentence imposed was not manifestly excessive and that the statutory prima facie rule of concurrency had not been displaced. The court found that the principle of totality required a consideration of the cumulative effect of the offending and that this could justify partial cumulation of sentences. The court also emphasised the importance of tailoring the sentence to the particular circumstances of the offender and the offences committed.

The court's decision provides guidance for sentencing courts in cases involving multiple offences and highlights the importance of a careful and nuanced approach to sentencing. The court's finding that the sentence was not manifestly excessive and that partial cumulation was permissible provides valuable guidance for practitioners in this area of law.

Orders