R v XB - [2009] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 883 of 2007

THE QUEEN
	v
XB

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JUDGES:	ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2009
DATE OF JUDGMENT:	18 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 51

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CRIMINAL LAW – Sentence – Multiple counts of sexual offences against a child under 16 – Whether sentencing judge erred in imposing disproportionate sentence without alerting counsel of her intention to do so – Whether appellant denied procedural fairness – Whether individual sentences on certain counts manifestly excessive – Count of producing child pornography – Whether sentence manifestly excessive – Extent of production less than and in part different to circumstances assumed by sentencing judge – Appeal allowed – Appellant re-sentenced to total effective sentence of 8 years and 2 months’ imprisonment with non-parole period of 5 years and 6 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr D A Glynn	Victoria Legal Aid

ASHLEY JA:

XB appeals by leave against sentence passed upon him by a County Court judge on 1 November 2007. On nine counts of sexual offences against a child under 16[1] and two counts relating to child pornography,[2] the judge imposed a total effective sentence of 9 years’ imprisonment with a non-parole period of 6 years. Consistently with s 6D of the Sentencing Act 1991, her Honour declared that she sentenced the appellant as a serious sexual offender in respect of counts 3-11 on the presentment. She made ancillary orders under the s 464 ZF of the Crimes Act 1958 (Vic), the Confiscation Act 1997 (Vic) and the Sex Offenders Registration Act 2004 (Vic), and she made a declaration in respect of pre sentence detention.
[1]Indecent act with or in the presence of a child under 16, contrary to s 47 Crimes Act 1958, maximum penalty 10 years’ imprisonment. Sexual penetration of a child under 16, contrary to s 45(2)(b) Crimes Act, maximum penalty 15 years’ imprisonment.
[2]Produce child pornography, contrary to s 68 Crimes Act, maximum penalty 10 years’ imprisonment. Knowingly possess child pornography, contrary to s 70 Crimes Act, maximum penalty 5 years’ imprisonment.

There are, in substance, two grounds of appeal. First that the learned judge wrongly determined that the case was an appropriate one in which to impose a disproportionate sentence;[3] and that she then proceeded to impose such a sentence without alerting counsel to her intention. So, it was submitted, counsel had no opportunity by making submissions about the matter, and thereby the appellant was denied procedural fairness. Second, that the individual sentences imposed on counts 2 and 11 were manifestly excessive.
[3]Sentencing Act 1991, s 6D(b).

Counsel for the Crown conceded, appropriately, that the judge erred in respect of each aspect of what I have called the first ground of appeal. But counsel also contended that, although the sentence was ‘stern’, it was within the permissible…

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 XB

Details

AGLC: R v XB [2009] VSCA 51
Case: [2009] VSCA 51
Decision Date: 18 March 2009

CaseChat Overview and Summary

The appellant, XB, was convicted of multiple counts of sexual offences against a child under the age of 16 and was sentenced to a total of 11 years and 6 months' imprisonment. XB appealed against his sentence, arguing that the sentencing judge had erred in imposing a disproportionate sentence without alerting counsel of her intention to do so, denying XB procedural fairness. XB also contended that the individual sentences on certain counts were manifestly excessive, particularly in relation to the count of producing child pornography.

The court considered the principles of sentencing and whether the sentencing judge had erred in imposing the sentence. The court found that the sentencing judge had not alerted counsel of her intention to impose a particular sentence, which was a breach of procedural fairness. The court also found that the individual sentences on certain counts were manifestly excessive, particularly in relation to the count of producing child pornography. The extent of production was less than and in part different to the circumstances assumed by the sentencing judge.

The appeal was allowed, and XB was re-sentenced to a total effective sentence of 8 years and 2 months' imprisonment with a non-parole period of 5 years and 6 months' imprisonment. The court considered the principles of sentencing and the circumstances of the case in arriving at the new sentence. The court found that the new sentence was appropriate and proportionate to the offending.

Orders