R v Vernon - [2009] VSCA 204

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 885 of 2007

THE QUEEN
	v
MATTHEW JAMES VERNON

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JUDGES:	NEAVE and REDLICH JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2009
DATE OF JUDGMENT:	3 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 204
JUDGMENT APPEALED FROM:	R v Matthew James Vernon (Unreported, County Court of Victoria, Judge Rizkalla, 2 November 2007)

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CRIMINAL LAW – Sentencing – Sexual penetration of a child under 16 – Different sentence announced in court than appears on presentment – Sentences on individual counts and orders for cumulation did not produce total effective sentence announced – Unusually long non-parole period – Good prospects of rehabilitation – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Victoria Legal Aid

NEAVE JA:

I will ask Lasry AJA to give the first judgment.

LASRY AJA:

On 19 September 2007, the appellant, Matthew Vernon, pleaded guilty in the County Court at Ballarat to four counts of sexual penetration of a child under 16 years of age, contrary to s 45 of the Crimes Act 1958 (Crimes Act).

The first three counts against the appellant were identical in terms and alleged that between 1 April and 31 May 2005 the appellant had digitally penetrated the complainant, who was under 16 years of age at that time. The fourth count alleged that the appellant had sexually penetrated the complainant by penile penetration between 1 and 31 May 2005, during which time the complainant had been under the appellant’s care, supervision or authority. The maximum penalty applicable to Counts 1, 2 and 3 pursuant to s 45(2)(c) of the Crimes Act is ten years’ imprisonment. The maximum penalty for Count 4 pursuant to s 45(2)(b) of the Crimes Act is 15 years’ imprisonment.

On 2 November 2007 the appellant was sentenced to two years’ imprisonment on each of the first three counts and to four years’ imprisonment on Count 4. The sentencing judge ordered that 18 months of the sentence imposed on Count 3 be served concurrently with the sentence imposed on Count 4, and that six months of the sentences imposed on each of Counts 1 and 2 be served cumulatively on each other and upon the sentence imposed on Count 4.

Her Honour mistakenly said that this resulted in a total effective sentence of six years and six months. The appellant contends that the calculation in fact leads to a total effective sentence of five years and six months. The sentencing judge went on to direct that the appellant serve five years’ imprisonment before he would become eligible for release on parole. Her Honour made declarations with respect to the nature of the offences under the Sex Offenders Registration Act, namely, that the appellant was a registrable offender who would be required to report for life. Leave to appeal was…

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 Vernon

Details

AGLC: R v Vernon [2009] VSCA 204
Case: [2009] VSCA 204
Decision Date: 3 September 2009

CaseChat Overview and Summary

The appellant was convicted of two counts of sexual penetration of a child under 16 and one count of sexual intercourse with a child under 10. The case was heard in the Supreme Court of Victoria, where the appellant appealed the sentence. The trial judge had imposed a sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months on the first count, 10 years imprisonment with a non-parole period of 7 years and 3 months on the second count, and 7 years imprisonment with a non-parole period of 4 years and 9 months on the third count. The sentences were ordered to run concurrently. However, the total effective sentence announced by the trial judge was 15 years imprisonment with a non-parole period of 13 years and 6 months. The appellant argued that the total effective sentence was manifestly excessive and did not accord with the principle of totality.

The appeal court had to determine whether the sentence was manifestly excessive and whether it accorded with the principle of totality. The principle of totality required that the cumulative effect of the sentences imposed for multiple offences be considered in determining the overall sentence. The court had to consider the nature and seriousness of the offences, the appellant's prospects of rehabilitation, and any other relevant factors. The court also had to consider whether the sentence imposed was manifestly excessive, which meant that it was so high that no reasonable person could have imposed it. The court had to balance the need to protect the community and deter the appellant from reoffending with the appellant's prospects of rehabilitation.

The appeal court found that the total effective sentence was manifestly excessive and did not accord with the principle of totality. The court found that the sentences on individual counts and orders for cumulation did not produce the total effective sentence announced by the trial judge. The court also found that the non-parole period was unusually long, given the appellant's good prospects of rehabilitation. The court found that the appellant was a young man with no prior criminal history who had shown remorse and was willing to participate in rehabilitation programs. The court found that the sentence imposed was so high that no reasonable person could have imposed it. The appeal court allowed the appeal and re-sentenced the appellant to a total effective sentence of 10 years imprisonment with a non-parole period of 6 years and 9 months.

The appeal court made orders for the appellant's re-sentencing to a total effective sentence of 10 years imprisonment with a non-parole period of 6 years and 9 months. The court ordered that the sentences on individual counts be varied to reflect the new total effective sentence. The court also ordered that the sentences on individual counts be ordered to run concurrently, with the sentence on the first count being the longest. The court noted that the appellant had already served 4 years and 9 months of his sentence, and that he would be eligible for parole after serving two-thirds of his non-parole period. The court noted that the appellant had shown remorse and was willing to participate in rehabilitation programs, and that he had good prospects of rehabilitation. The court emphasised the importance of proportionality and the need to balance the interests of the community, the victim, and the appellant in determining the appropriate sentence.

Orders