R v Parfitt - [2006] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 179 of 2005

THE QUEEN
	v.
DANIEL SCOTT PARFITT

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JUDGES:	BUCHANAN, VINCENT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2006
DATE OF JUDGMENT:	20 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 91

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Criminal law – Sentencing – Sexual offence – Sexual penetration of a child under sixteen years – Whether judge erred by loading sentence because of uncharged acts – Double jeopardy – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958, s.47A.

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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 G.F. Meredith	Victorian Aboriginal Legal Service

BUCHANAN, J.A.:

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

NETTLE, J.A.:

On 27 May 2005 the appellant, Daniel Scott Parfitt, was arraigned before the County Court at Melbourne on one count of taking part in an act of sexual penetration with a female child between 10 and 16, contrary to s.45(2)(c) of the Crimes Act 1958. He pleaded guilty. After hearing a plea in mitigation, on 3 June 2005 the judge sentenced the appellant to be imprisoned for a period of three years and ordered that he serve 21 months' imprisonment before being eligible for parole.

By leave granted on 9 December 2005 the appellant now appeals against the sentence on grounds that:

1)The judge erred by imposing a sentence that incorporated, as an aggravating feature, acts of sexual penetration committed by the appellant with which he was not charged.
2)The judge erred in imposing a sentence that incorporated, as an aggravating feature, conduct which amounted to an element of the offence and thus exposed the appellant to double punishment.
3)The sentence is manifestly excessive.

The facts

The appellant was born on 8 November 1976, and at the time of the offending (between 1 February 2003 and 31 March 2003) was 26 years of age. The victim was born on 13 July 1988, and at the time of the offending was 14 years of age. The appellant was employed as a teacher's aide at the Warracknabeal Secondary College and the victim was a Year 9 student at that school. The appellant did not, however, have direct contact with the complainant in his capacity as a teacher's aide (and the Crown did not allege that the victim was otherwise under the appellant's care, supervision or authority).

The appellant was a talented sportsman who had competed at state and national levels in touch football, Rugby Union football, basketball and Australian Rules football. He played Australian Rules football for the local football club. Consequently, young girls of the victim's age were likely to think of the appellant as attractive and to be flattered by any attention that he may give them.

Towards the end of the school year in 2002, the appellant and the victim began to talk to each other during school recesses and after school and, when the new school year…

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 Parfitt

Details

AGLC: R v Parfitt [2006] VSCA 91
Case: [2006] VSCA 91
Decision Date: 20 April 2006

CaseChat Overview and Summary

The appellant was convicted of sexually penetrating a child under the age of sixteen. The sentence imposed by the trial judge was the subject of appeal, with the appellant arguing that the sentence was excessively high and that the judge had improperly considered uncharged acts. The appeal was heard by the Court of Appeal. The legal issues before the court were whether the sentence was manifestly excessive, and if the trial judge had erred by considering uncharged acts when determining the sentence. The court found that the sentence was not manifestly excessive, and that while the trial judge did consider uncharged acts, this did not constitute an error. The court emphasised that when sentencing an offender, the judge is entitled to consider the offender's whole course of conduct, including uncharged acts, so long as it does not lead to double jeopardy. The court concluded that the sentence was appropriate and dismissed the appeal. The court noted that the trial judge had carefully considered the appropriate sentence and had not erred in his approach. The appeal was dismissed, and the original sentence was upheld.

Orders