R v W W S - [2009] VSCA 125

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 531 of 2007

THE QUEEN
	Applicant
v
WWS	Respondent

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JUDGES:	VINCENT, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2009
DATE OF JUDGMENT:	5 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 125
JUDGMENT APPEALED FROM:	R v WW (County Court of Victoria, Judge Douglas, 9 February 2007)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Applicant pleaded guilty to nine counts of sexual offences against seven females under the age of 16 – Whether one count was bad for duplicity on the basis that it joined two offences together – Whether offending referred to in that count should instead have been included as a particular – Whether applicant subject to multiple punishment for a single act – Interpretation of Legislation Act 1984 s 51 – Application refused.

CRIMINAL LAW – Sentence – Application for leave to appeal – Whether applicant sentenced on the basis of an offence of which he was not convicted – Whether applicant subject to double or multiple punishment – Whether judge properly sentenced applicant on the basis that he showed no remorse for his offending – Whether individual sentences, total effective sentence and non-parole period manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Ms E McKinnon	Victoria Legal Aid

VINCENT JA
NETTLE JA
NEAVE JA:

I INTRODUCTION

The applicant, WWS, pleaded guilty in the County Court to nine counts of sexual offences against seven children between specified dates spanning the period from 1 January 2000 to 5 December 2004. Three of the children were the grandchildren of his late wife (his step-grandchildren), two were the grandchildren of his late wife’s sister and two were the children of friends. The offending came to light in December 2004, when the complainants AS and AJ made complaints to the Sexual Offences and Child Abuse Unit of the Victoria Police at Morwell.

The applicant pleaded guilty to the following counts:

Count

1 Commission of an indecent act with a child (BK) under the age of 16

2 Commission of an indecent act with a child (BL) under the age of 16

3 Maintaining a sexual relationship with a child (AS) under the age of 16

4 Maintaining a sexual relationship with a child (AJ) under the age of 16

5 Commission of an indecent act with MB in the presence of AS, a child under the age of 16

7 Commission of an indecent act with a child (CJ) under the age of 16

8 Commission of an indecent act with a child (RR) under the age of 16

9 Commission of an indecent act in the presence of RR, a child under the age of 16 (on an occasion other than that referred to in count 8)

10 Commission of an indecent act with a child (CT) under the age of 16

The…

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 W W S

Details

AGLC: R v W W S [2009] VSCA 125
Case: [2009] VSCA 125
Decision Date: 5 June 2009

CaseChat Overview and Summary

The defendant, W W S, applied for leave to appeal against his conviction and sentence in a criminal matter. W W S had pleaded guilty to nine counts of sexual offences against seven females under the age of 16. The applicant argued that one of the counts was bad for duplicity, in that it joined two separate offences together. The applicant also argued that the offending referred to in that count should have been included as a particular, rather than a count, and that the applicant was thereby subject to multiple punishment for a single act. Additionally, the applicant argued that the sentence was manifestly excessive.

The court examined the relevant sections of the Interpretation of Legislation Act 1984 and determined that the count in question was not bad for duplicity. The court held that the offence referred to in that count was a single act and that the applicant was not subject to multiple punishment for a single act. The court also considered the sentencing submissions and found that the judge had properly taken into account the applicant's lack of remorse and that the sentence, including the non-parole period, was not manifestly excessive.

The application for leave to appeal was refused. The court held that the applicant had not shown that the appeal had a reasonable prospect of success, and that the appeal would not result in a manifestly unjust outcome. The court also found that the application did not raise a question of law of general public importance.

Orders