R v Richardson - [2008] VSCA 7

SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 419 of 2007

THE QUEEN

v.

MARK RICHARDSON

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JUDGES:

VINCENT, NEAVE and REDLICH JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

31 January 2008

DATE OF JUDGMENT:

1 February 2008

MEDIUM NEUTRAL CITATION:

[2008] VSCA 7

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Criminal law – Sentencing – Appellant pleaded guilty to six counts of sexual penetration a child under 16 – Offences committed in one 24 hour period against two 14 year old school girls, who the appellant met at a railway station - Appellant was then aged 31 – Sentenced to six years six months imprisonment, with a non-parole period of five years – Crown conceded that the judge erred by misstating the maximum penalty and that the sentence was manifestly excessive – Appeal allowed – Appellant re-sentenced to three years six months’ imprisonment with a non-parole period of 27 months.
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APPEARANCES: Counsel Solicitors

For the Crown Mr J D McArdle QC Ms A Cannon, Solicitor for Public Prosecutions

For the Appellant
Mr C B Boyce
Regan Richards
VINCENT JA:
1 I will invite Neave JA to deliver the first judgment.

NEAVE JA:
2 The appellant, Mr Mark Richardson, pleaded guilty to six counts of sexual penetration of a child under the age of 16. The appellant was 31 years old at the time of the offending and is now 34. All the offences occurred over one evening and the next morning. The victims were two schoolgirls, whom I will refer to as GR and BC. They were aged 14 at that time.

3 Mr Richardson was sentenced by a County Court judge to four years’ imprisonment on each of the six counts. The learned sentencing judge ordered that six months of the sentences imposed on counts 2, 3, 4, 5 and 6 were to be served cumulatively on the sentence imposed on count 1. This resulted in a total effective sentence of six years and six months’ imprisonment. His Honour imposed a non-parole period of five years. This is an appeal, with leave,[1] against those sentences.
[1]Leave to appeal pursuant to s 582 of the Crimes Act 1958 was granted by Buchanan JA on 21 September 2007.

Background

4 The appellant first encountered the complainant GR in October 2004 at Altona railway station following a party. Both the appellant and GR were with groups of friends and there was an exchange between some of the appellant’s friends and the complainants’ group.

5 Later that night the appellant and GR met at Newport station, where the appellant approached her and apologised for the behaviour of his friends at Altona. He struck up a conversation with GR which resulted in the exchange of mobile telephone numbers.

6 Over the course of the next few weeks the appellant and GR spoke on the phone on a few occasions. Then, on 19 November 2004, the appellant received a call from GR who was at Highpoint Shopping Centre, with the other complainant BC. GR told the appellant that they…

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 Richardson

Details

AGLC: R v Richardson [2008] VSCA 7
Case: [2008] VSCA 7
Decision Date: 1 February 2008

CaseChat Overview and Summary

In the case of R v Richardson, the appellant was convicted of six counts of sexual penetration of a child under 16. The offences were committed in a 24 hour period against two 14-year-old school girls whom the appellant had met at a railway station. At the time of the offences, the appellant was 31 years old. The appellant was sentenced to six years and six months imprisonment, with a non-parole period of five years. The Crown conceded that the judge had erred by misstating the maximum penalty and that the sentence was manifestly excessive.

The legal issues before the court were whether the trial judge had erred in his application of the sentencing principles, and whether the sentence was manifestly excessive. The court had to determine whether the trial judge had correctly identified and applied the relevant principles, and whether the sentence imposed was appropriate in the circumstances. The court also had to consider whether the sentence was manifestly excessive, and if so, whether the appeal should be allowed and the appellant re-sentenced.

The court found that the trial judge had erred in his application of the sentencing principles, and that the sentence was manifestly excessive. The court noted that the trial judge had misstated the maximum penalty for the offences, which was 15 years imprisonment, not 10 years as stated by the trial judge. The court also found that the sentence imposed was manifestly excessive, given the appellant’s age, the nature of the offences, and the appellant’s background. The court noted that the appellant had no previous criminal history, and that he had shown some remorse for his actions. The court found that a sentence of three years and six months imprisonment, with a non-parole period of 27 months, was appropriate in the circumstances.

The court allowed the appeal and re-sentenced the appellant to three years and six months imprisonment, with a non-parole period of 27 months. The court noted that the re-sentence took into account the appellant’s age, the nature of the offences, and the appellant’s background. The court also noted that the re-sentence was within the range of sentences that could be imposed for the offences, and that it was not manifestly excessive.

Orders