R v X A - [2009] VSCA 52

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 880 of 2007

THE QUEEN
	v
XA

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2009
DATE OF JUDGMENT:	16 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 52

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Criminal law – Sentence – Multiple sexual offences - Non-parole period an unusually high proportion of total effective sentence – No explanation – Prospect of rehabilitation - Total effective sentence – Late plea of guilty – Whether failure to attach sufficient weight to plea - Failure to accord any weight to appellant’s mental illness making imprisonment unusually burdensome – Appellant sentenced for offences on two presentments on the one occasion – Total effective sentence imposed in respect of sentences on multiple counts on one presentment – Total effective sentence imposed after part cumulation of sentence on other presentment upon that ‘total effective sentence’ - Non-parole period fixed in respect of sentence on each presentment – Serious sexual offender – Failure to specify when appellant became a serious sexual offender for sentencing purposes – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr R F Edney	Robert Stary & Associates

ASHLEY JA:

The appellant appeals by leave against sentence imposed in the County Court on 2 November 2007, at which time, on a total of seven counts, a total effective sentence of six years and six months' imprisonment was imposed, with a non-parole period of five years.

After trial on what I shall call 'the second presentment', the appellant was found guilty of an indecent assault upon his married sister-in-law.[1] The judge sentenced him to 18 months' imprisonment. On what I shall call 'the first presentment', the appellant belatedly pleaded guilty to six counts of sexual offences against children. The offences were committed in the period January 2000 to September 2004. At the time when the offences were committed, each of the victims, being a friend of a daughter of the appellant, was ‘sleeping over’ at the appellant's home.
[1]Contrary to s39(1), Crimes Act 1958 (Vic), maximum penalty 10 years imprisonment.

The complainants, the offences and the individual sentences imposed were respectively as follows.

Complainant A: count 1, indecent act with or in the presence of a child aged between 10 and 16 years[2] (touching the complainant's vagina), 12 months' imprisonment; count 2, indecent act (placing the complainant's hand on the appellant's penis), 12 months' imprisonment; count 3, attempted sexual penetration of a child aged under 16[3] (attempted penile/vaginal penetration), 30 months' imprisonment. This complainant was aged between 11 and 13 at the time of the offending.
[2]Contrary to s47(1), Crimes Act, maximum penalty 10 years imprisonment.
[3]Contrary to s321 M, Crimes Act, maximum penalty 10 years imprisonment.

Complainant B: count 4, indecent act (touching the complainant's vagina), 24 months' imprisonment; count 5, indecent act (touching the complainant's vagina), 24 months' imprisonment.

This complainant was aged between 10…

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 X A

Details

AGLC: R v X A [2009] VSCA 52
Case: [2009] VSCA 52
Decision Date: 16 March 2009

CaseChat Overview and Summary

In this case, the appellant was convicted of multiple sexual offences and sentenced to imprisonment. The appellant appealed against the sentence imposed by the sentencing judge, arguing that the non-parole period represented an unusually high proportion of the total effective sentence, and that there was no explanation for this. The appellant also argued that the sentencing judge had failed to attach sufficient weight to the appellant's late plea of guilty, and had failed to accord any weight to the appellant's mental illness, which made imprisonment unusually burdensome. The appellant further argued that the total effective sentence imposed after part cumulation of the sentence on one presentment was excessive, and that the non-parole period fixed in respect of the sentence on each presentment was not justified.

The legal issues before the court were whether the non-parole period represented an unusually high proportion of the total effective sentence, whether the sentencing judge had failed to attach sufficient weight to the appellant's late plea of guilty, whether the sentencing judge had failed to accord any weight to the appellant's mental illness, and whether the total effective sentence imposed after part cumulation of the sentence on one presentment was excessive. The court held that the non-parole period represented an unusually high proportion of the total effective sentence, and that there was no explanation for this. The court also held that the sentencing judge had failed to attach sufficient weight to the appellant's late plea of guilty, and had failed to accord any weight to the appellant's mental illness, which made imprisonment unusually burdensome. The court held that the total effective sentence imposed after part cumulation of the sentence on one presentment was excessive.

The court allowed the appeal and re-sentenced the appellant. The court noted that the appellant had pleaded guilty to the offences on two separate presentments on the one occasion, and that the total effective sentence imposed in respect of the sentences on multiple counts on one presentment was excessive. The court also noted that the non-parole period fixed in respect of the sentence on each presentment was not justified. The court held that the appellant was a serious sexual offender, but that the sentencing judge had failed to specify when the appellant became a serious sexual offender for sentencing purposes. The court re-sentenced the appellant, fixing the non-parole period at a lower proportion of the total effective sentence, and taking into account the appellant's late plea of guilty and mental illness. The court also specified when the appellant became a serious sexual offender for sentencing purposes.

Orders