R v W S; R v J S - [2006] VSCA 59

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 177 of 2005
v.
WS
THE QUEEN	No. 175 of 2005
v.
JS

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JUDGES:	WARREN, C.J., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 March 2006
DATE OF JUDGMENT:	8 March 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 59

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Criminal Law – Sentence – Indecent act with a child under 16 – Producing child pornography – Possession of child pornography – Offences committed against victim by mother and step-father – Crown concession of a material error made by sentencing judge – Offences encompassed by counts 5 and 7 not sexual offences for the purposes of Part 2A of the Sentencing Act 1991 – Appeal allowed in order to correct error – Sentences not manifestly excessive and re-imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant WS	Mr T. Kassimatis	Victoria Legal Aid
For the Appellant JS	Mr T.E. Wraight	Hale & Wakeling

WARREN, C.J.:

I invite Vincent, J.A. to state his reasons first.

VINCENT, J.A.:

The appellant, WS, pleaded guilty in the County Court, on 5 May 2005, to five counts of the commission of an indecent act with or in the presence of a child under the age of 16 years (counts 1, 2, 3, 4 and 6 on the presentment). This offence is punishable by the imposition of a maximum penalty of 10 years' imprisonment. Count 2, I should add, was a representative count. He also pleaded guilty to one count of making child pornography (count 5). This offence is also punishable by a maximum sentence of 10 years' imprisonment. Finally, he pleaded guilty to one count of knowingly possessing child pornography (count 7), an offence punishable by the imposition of a maximum term of five years' imprisonment.

The appellant JS pleaded guilty to counts 4 and 5 on the presentment.

WS has no prior convictions. JS admitted three prior convictions from one court appearance in June 1993. They related to two offences of taking part in an act of sexual penetration with a child of or above the age of 10 years but under the age of 16 years, and one of the commission of an indecent act with or in the presence of a child under the age of 16 years. They involved the serious sexual abuse of an 11 year old girl. Of particular relevance to the present matter was the statement of the sentencing judge in addressing JS upon that occasion that -

"[A]ny sexual offence of this kind against children and children of tender years is deserving of severe punishment. You knew that what you were doing was wrong. Whatever went on between you and [your co-offender], it was obvious to you that the use of this child in your activities was depraved and wrong.
It must be brought home to persons such as yourself that children are to be protected. Sentences will be imposed by…

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.

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Details

Case: [2006] VSCA 59
Decision Date: 8 March 2006

CaseChat Overview and Summary

The appellants, W S and J S, were convicted of multiple offences against a child, including indecent acts, production of child pornography, and possession of child pornography. The case was heard and determined in the Court of Appeal. The central issue before the court was whether the offences for which the appellants were convicted should be classified as sexual offences under Part 2A of the Sentencing Act 1991. This classification was pivotal in determining the appropriate sentencing framework for the appellants' crimes. The court had to consider whether the offences encompassed by counts 5 and 7 were indeed sexual offences, as this would impact the severity and type of sentence imposed.

The court examined the nature and context of the offences, recognising that the Crown had conceded a material error was made by the sentencing judge in classifying these offences. The court held that counts 5 and 7 were not sexual offences for the purposes of Part 2A of the Sentencing Act 1991. This classification error was significant as it potentially impacted the overall sentencing approach. Despite the error, the court found that the sentences imposed were not manifestly excessive. The court allowed the appeal to correct the classification error but re-imposed the original sentences, finding them to be appropriate given the nature and severity of the offences.

Ultimately, the appeal was allowed to correct the error in the classification of the offences, but the sentences were re-imposed as they were deemed appropriate. The court ensured that the sentences reflected the gravity of the crimes committed against the victim, while also addressing the legal error identified. The final orders confirmed the correction of the classification error and the re-imposition of the sentences as initially determined.

Orders