R v Sotto - [2009] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 535 of 2007

THE QUEEN
	v
RENE JAMES SOTTO

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JUDGES:	MAXWELL ACJ, BUCHANAN and VINCENT JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2009
DATE OF JUDGMENT:	8 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 70

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CRIMINAL LAW – Sentence – Assault – Indecent assault – Rape – Threat to kill – Whether manifestly excessive – Applicant sentenced as a serious sexual offender – Whether trial judge erred by making factual findings adverse to the applicant without those facts having been established beyond reasonable doubt – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown:	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr M D Stanton	Victoria Legal Aid

MAXWELL ACJ
BUCHANAN JA
VINCENT JA:

The applicant was convicted, on 19 October 2006, after a trial in the County Court at Melbourne on one count of assault (count 3), one of indecent assault (count 4), two of rape (counts 5 and 8), and one of a threat to kill (count 9).[1]
[1]Presentment T01912005A. He also pleaded guilty to one count contained in a separate presentment of the possession of a drug of dependence (Presentment T01912005B). For this offence a fine of $100 was imposed. The applicant was sentenced as a serious sexual offender in respect of count 9.

He had six prior convictions arising from three court appearances, relating to the intentional damaging of property, affray and theft (1998) and the possession and use of cannabis (2003).

The applicant was 22 years of age at the time of the offences presently under consideration, and 24 years at the time of sentence. After hearing a plea in mitigation of penalty, the trial Judge, on 12 February 2007, sentenced him to

6 months’ imprisonment (count 3)
2 years’ imprisonment (count 4)
7 years’ imprisonment (count 5)
7 years’ imprisonment (count 8)
2 years’ imprisonment (count 9)

His Honour ordered that 12 months of the sentence imposed on count 5, 6 months of that imposed on count 4, and 6 months of that imposed on count 9 be served cumulatively upon the sentence imposed on count 8 and each other. This created a total effective sentence of nine years’ imprisonment, in respect of which a non-parole period of seven years was set.
The application for leave to appeal against sentence

The applicant was refused leave to appeal by a single judge of this Court. He elected to renew the application for leave to appeal before a bench of three. His grounds assert that -

1.The learned sentencing Judge erred in imposing a manifestly excessive sentence, both in terms of the total effective sentence and the non-parole period.
2.The learned sentencing Judge erred in making factual findings that were adverse to the applicant without those facts having been established beyond reasonable doubt.

The background

The offences were committed in a rooming house in Templestowe in which both the victim…

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 Sotto

Details

AGLC: R v Sotto [2009] VSCA 70
Case: [2009] VSCA 70
Decision Date: 8 April 2009

CaseChat Overview and Summary

The applicant, an individual convicted of serious sexual offences, appealed against the sentence imposed by the trial judge, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal, which had to determine whether the trial judge erred in making factual findings adverse to the applicant without those facts being established beyond reasonable doubt. The applicant was convicted of indecent assault, rape, and making threats to kill. The Court of Appeal was tasked with examining the legal principles guiding the imposition of sentences for such serious sexual offences and assessing whether the sentence was appropriate in the circumstances.

The Court of Appeal considered the principles of sentencing for serious sexual offences, which involve a consideration of the gravity of the offence, the culpability of the offender, and the need for deterrence and protection of the community. The court also examined whether the trial judge erred by making factual findings adverse to the applicant without those facts being established beyond reasonable doubt. In doing so, the court looked at the evidence presented during the trial and the trial judge's reasons for the sentence imposed. The court held that the trial judge did not err in making factual findings, as the evidence supported the findings, and the sentence imposed was not manifestly excessive.

Having considered the evidence and the principles of sentencing, the Court of Appeal determined that the trial judge had not erred in imposing the sentence. The court found that the sentence was proportionate to the seriousness of the offences and took into account the need for deterrence and protection of the community. As a result, the appeal was dismissed, and the applicant's sentence was upheld. The Court of Appeal's decision confirmed the importance of considering the gravity of serious sexual offences and the need for appropriate sentences that reflect the culpability of the offender and the need to protect the community.

Orders