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R v Taylor

R v Taylor

Case [2004] VSCA 98 4 June 2004

Cumulative Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 301 of 2002

THE QUEEN
	v.
ARTHUR JAMES TAYLOR

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JUDGES:	WINNEKE, P., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2004
DATE OF JUDGMENT:	4 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 98

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Criminal law – Sexual offences against child –Whether judge erring in directing jury that a large number of telephone calls from the applicant to the complainant, within a limited time, and periodic visits by the applicant to her when she was alone were capable of supporting complainant’s evidence of subsequent sexual molestation – Nature of corroborative evidence discussed – Whether corroborative evidence should have been subject to a propensity warning – Application against conviction dismissed.

Criminal law – Sentence – Total effective sentence of five years and nine months manifestly excessive – Judge erring in wholly cumulating sentences notwithstanding applicant being sentenced as a “serious sexual offender” - Sentences disproportionate to gravity of offending – Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C.	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. P.G. Priest, Q.C. and Mr. M.J. Croucher	Leanne Warren & Associates

WINNEKE, P.:

On 22 October 2002 the applicant, Arthur James Taylor, was convicted by a jury in the County Court at Melbourne on three counts of committing indecent acts with a child under the age of 16, which offences were alleged to have been committed in September 1999 (counts 1 and 2) and between 1 March 2000 and 30 April 2000 (count 3). On 11 November 2002 the trial judge sentenced the applicant as follows:

Count 1-          three months’ imprisonment
Count 2-          two years’ imprisonment
Count 3-          three years and six months’ imprisonment.

The judge ordered that the sentences be served cumulatively upon each other, thus rendering the total effective sentence one of five years and nine months’ imprisonment. His Honour ordered that the applicant serve a minimum term of four years before becoming eligible for parole. His Honour declared, pursuant to s.18 of the Sentencing Act, that the applicant had already served 17 days of the sentences which he had imposed. He also noted that after the imposition of the sentence imposed on count 1, the applicant was to be sentenced as a serious sexual offender within the meaning given to that term by the Sentencing Act 1991 and, in doing so, said:
“Insofar as counts 2 and 3 are concerned I am satisfied the only appropriate sentence is one of imprisonment. In that regard I find count 3 to be the most serious. I am directed to regard the protection of the community from you as the principal purpose for which such sentences are to be imposed. I am satisfied there is a necessity to provide for protection of the community in your case. In the period from September 1999 to April 2000 you increased the gravity of the acts you performed with [the complainant] and leading up to count…

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 Taylor

Details

AGLC: R v Taylor [2004] VSCA 98
Case: [2004] VSCA 98
Decision Date: 4 June 2004

CaseChat Overview and Summary

In this case, the respondent, Taylor, was convicted of sexual offences against a child. The applicant, Taylor, appealed against both his conviction and sentence. The primary issue before the court was whether the judge erred in directing the jury that a significant number of telephone calls from Taylor to the complainant, within a limited timeframe, and periodic visits to the complainant when she was alone were capable of supporting the complainant's evidence of subsequent sexual molestation. Another issue was whether the corroborative evidence should have been subject to a propensity warning.

The court found that the judge did not err in directing the jury as the evidence presented, including the significant number of telephone calls and visits, supported the complainant's evidence of subsequent sexual molestation. The court also found that the corroborative evidence did not require a propensity warning, as it was relevant to the offence charged. The application against the conviction was dismissed. Regarding the sentence, the court found that the total effective sentence of five years and nine months was manifestly excessive. The judge erred in wholly cumulating the sentences, despite Taylor being sentenced as a "serious sexual offender". The sentences were disproportionate to the gravity of the offending. Consequently, Taylor was re-sentenced.

Orders