R v Parton - [2007] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 325 of 2006

THE QUEEN
	v.
STEPHEN MICHAEL PARTON

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JUDGES:	NEAVE and KELLAM JJA, CURTAIN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2007
DATE OF JUDGMENT:	4 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 268

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CRIMINAL LAW – Sentencing – Appellant pleaded guilty to rape (five counts), aggravated burglary and possession of a firearm, in circumstances where he bound, terrorised and repeatedly raped his ex-partner over the course of five hours – Sentenced to total effective sentence of 16 years’ imprisonment with a non-parole period of 13 years – Whether sentencing judge failed to give due weight to guilty plea – Whether sentencing judge treated the appellant’s depressive illness in accordance with R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 169 A Crim R 581 – Appeal allowed – Appellant re-sentenced to a total effective sentence of 16 years’ imprisonment with non-parole period of 12 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr S Johns	Victoria Legal Aid

NEAVE , JA:

I have had the advantage of reading the draft judgments of Kellam JA and Curtain AJA. I agree with their Honours that the learned sentencing judge erred by failing to take account of the link between the appellant’s depressive illness and his offending. The appellant must therefore be re-sentenced.

Despite the appellant’s serious depressive condition, significant weight must be given to both general and specific deterrence in re-sentencing him. These appalling offences were premeditated. The appellant had previously raped a former partner under very similar circumstances. Although he must have been aware of the risk that he would re-offend, he did not seek medical help when he became depressed again. Unless he continues to take his medication he is likely to present a significant danger to any woman who embarks on a relationship with him in the future.

I agree with Kellam JA that the sentences imposed on the individual counts were extremely moderate. The offending took place over a lengthy period in terrifying circumstances. All of the offences, and particularly the rape with the vibrator, were both humiliating and distressing. The victim impact statement shows that the victim continues to suffer from the effect of a brutal attack by a man with whom she had previously lived in an affectionate relationship.

If counsel for the appellant had been warned of the possibility that this Court might increase the individual sentences imposed by the judge below, I consider that it might well have been appropriate to do so.

In the circumstances I agree that the appellant should be re-sentenced as proposed by Curtain AJA.

KELLAM JA:

I have had the advantage of reading the draft reasons for judgment of Curtain AJA.

I respectfully agree with Curtain AJA that the sentencing judge was in error in concluding that there was before her no evidence which in any way linked 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 Parton

Details

AGLC: R v Parton [2007] VSCA 268
Case: [2007] VSCA 268
Decision Date: 4 December 2007

CaseChat Overview and Summary

The appellant, Parton, appealed against his sentence for multiple counts of rape, aggravated burglary, and firearm possession. The trial judge had sentenced him to a total effective period of 16 years in prison, with a non-parole period of 13 years. The appellant argued that the sentencing judge did not adequately consider the advantages of a guilty plea and failed to appropriately assess his depressive illness in accordance with relevant legal precedents. The central legal issues before the court were whether the sentencing judge had correctly balanced the factors in determining the sentence and if the judge had appropriately considered the appellant's mental health condition when imposing the sentence.

The court examined the sentencing principles and the factors the trial judge should have considered, particularly the discount for the guilty plea and the impact of the appellant's depressive illness. The court noted that the sentencing judge had not given adequate weight to the appellant's guilty plea, which should have resulted in a reduced sentence. Additionally, the court found that the judge had not sufficiently considered the impact of the appellant's mental health condition on his culpability and the appropriateness of a custodial sentence. The court held that these errors warranted the appeal being allowed and the sentence being set aside.

Upon re-sentencing, the court acknowledged the appellant's guilty plea and his mental health condition. Despite these considerations, the court determined that the seriousness of the offences warranted a significant custodial sentence. The court re-sentenced the appellant to a total effective period of 16 years in prison, with a non-parole period of 12 years. The court found this to be an appropriate sentence that balanced the need for punishment and deterrence with the factors mitigating the appellant's culpability.

Orders