R v Smart - [2005] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 189 of 2005

THE QUEEN
	v.
PHILIP ROBERT SMART

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JUDGES:	CHERNOV and NETTLE, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 September 2005
DATE OF JUDGMENT:	8 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 226

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Criminal law – Sentencing – Sexual offences – Indecent assault of a child under 10 years of age – Possessing child pornography – Whether sentencing judge failed to give adequate weight to appellant’s state of health and delay between crimes and imposition of sentence – Whether serious sexual offender – Sentencing Act 1991 s.6B.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K.E. Judd	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

CHERNOV, J.A.:

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

NETTLE, J.A.:

On 16 June 2005 the appellant pleaded guilty before a judge of the County Court at Melbourne to two counts of indecent assault (counts 1 and 2) and one count of being in possession of child pornography (count 3), and after hearing a plea in mitigation, on 20 June 2005 the judge sentenced the appellant on each count to a term of imprisonment of six months, each to be served concurrently, making for a total effective sentence of six months. The appellant now appeals against the sentence by leave of a judge of this Court granted on 29 July 2005.

The facts

The facts of the matter were agreed at the plea hearing to be as follows. The appellant was born on 17 August 1951 and at the time of sentencing was 53 years old. The complainant was born on 7 May 1980, the second of five children. Following the separation of his father and mother, his mother moved to live with a man "A" at a rented flat in East Malvern which A shared with the appellant. In December 1989 the complainant and one of his sisters went to live at the flat with their mother and A and the appellant. They stayed for a couple of months. The complainant's mother was, however, spending a lot of time with A, and the complainant, who was then only ten years old, was feeling ignored.

The appellant was a music master at a boys' school and presented himself to the complainant as a "very nice person" and a father figure. He would occasionally rub the complainant on the back in an affectionate manner, making the complainant feel good about himself, and evidently the complainant welcomed the attention. The appellant was also in the habit of coming home late after the complainant and his sister had been put to bed, and after a while he started waking up the complainant and asking him for a hug. When that occurred the complainant got out of his sofa

bed and the appellant hugged him in a gentle and soft manner without waking the complainant's sister. The practice soon developed into a…

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 Smart

Details

AGLC: R v Smart [2005] VSCA 226
Case: [2005] VSCA 226
Decision Date: 8 September 2005

CaseChat Overview and Summary

In the case of R v Smart, the appellant was convicted of indecent assault of a child under 10 years of age and possessing child pornography. The matter came before the court to determine the appropriate sentence for the appellant's crimes. The appellant argued that the sentencing judge did not adequately consider his state of health and the significant delay between the commission of the offences and the imposition of sentence. Additionally, the appellant contended that he should not be classified as a serious sexual offender under the Sentencing Act 1991, section 6B.

The primary legal issues before the court were whether the sentencing judge failed to give appropriate weight to the appellant's health and the delay between the commission of the offences and the imposition of sentence, and whether the appellant qualified as a serious sexual offender under section 6B of the Sentencing Act 1991. The court was required to examine the sentencing principles and relevant statutory provisions to assess the appellant's arguments.

The court found that the sentencing judge had considered the appellant's health and the delay between the offences and the imposition of sentence, but did not believe that these factors warranted a significant reduction in the sentence. The court noted that the appellant's health issues did not prevent him from committing the offences, and the delay between the commission of the offences and the imposition of sentence did not absolve the appellant of responsibility for his actions. In relation to the classification of the appellant as a serious sexual offender, the court found that the appellant's crimes met the criteria under section 6B of the Sentencing Act 1991. The court held that the appellant's crimes demonstrated a significant degree of premeditation and a high degree of moral blameworthiness, warranting the classification as a serious sexual offender.

The court ultimately upheld the sentence imposed by the sentencing judge, finding that it was appropriate and not manifestly excessive. The court also upheld the classification of the appellant as a serious sexual offender under section 6B of the Sentencing Act 1991. The appellant's appeal was dismissed, and the original sentence stood.

Orders