Richard Grantley (a pseudonym)[1] v The Queen - [2017] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0219

RICHARD GRANTLEY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 67
JUDGMENT APPEALED FROM:	[2016] VCC 1538 (Judge Sexton)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Incest – Indecent act with a child under 16 years – Total effective sentence of nine years’ imprisonment – Non-parole period of seven years – Manifest excess – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Paul Vale Criminal Law
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, for whom I will use the pseudonym Richard Grantley,[2] seeks leave to appeal against sentence imposed on him in the County Court of Victoria on 13 October 2016. He pleaded guilty on 13 September 2016 to one representative charge of incest contrary to s 44(1) of the Crimes Act 1958, a further charge of incest, and one charge of indecent act with a child under 16 years contrary to s 47(1) of the Crimes Act. He was sentenced as follows:
[2]In these reasons I will adopt the pseudonyms used by the judge below in her sentencing remarks: DPP v Grantley (a pseudonym) [2016] VCC 1538 [1] (‘Sentencing reasons’). The judge called the older complainant Libby, the second complainant Ella, their next youngest sister Freda and the youngest sister Tara. The judge called the mother of the girls Karen Chester.

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Incest (representative charge)[Crimes Act 1958 s 44(1)] 25 years’ imprisonment 6 years 6 months’ imprisonment Base

2 Incest [Crimes Act 1958 s 44(1)] 25 years’ imprisonment 5 years 6 months’ imprisonment 2 years

3 Indecent act with a child under 16 years [Crimes Act 1958 s 47(1)] 10 years’ imprisonment 12 months’ imprisonment 6 months

Total Effective Sentence:

9 years’ imprisonment

Non-Parole Period:

7 years

Pre-Sentence detention declaration:

31 days

6AAA Statement: None made

Other relevant orders: Sentenced as a Serious Sexual Offender on charge 3. Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958. Report pursuant to the Sex Offenders Registration Act 2004 for life.

Grantley seeks leave to appeal on the ground that the individual sentences, the orders for cumulation, the total effective sentence, and the non-parole period fixed are each manifestly excessive. He relies on the following particulars:

(a) The judge gave manifestly insufficient weight to his early pleas of guilty, his genuine remorse, his age, his prospects…

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: [2017] VSCA 67
Decision Date: 3 April 2017

CaseChat Overview and Summary

In the case of Richard Grantley (a pseudonym) v The Queen, the appellant sought leave to appeal against his conviction and sentence for committing an indecent act with a child under 16 years of age, specifically within the context of incest. The High Court of Australia was tasked with determining whether the sentence imposed by the lower court was manifestly excessive. The central issue revolved around whether the total effective sentence of nine years’ imprisonment, with a non-parole period of seven years, constituted a manifest excess of the appropriate punishment for the crime committed.

The court examined the principle of manifest excess, which requires an evaluation of whether the sentence imposed is so disproportionate to the crime that it shocks the conscience of the community. In this instance, the court was required to consider the severity of the crime, the need for general and specific deterrence, and the impact on the victim, alongside other relevant factors. The appellant argued that the sentence was excessively harsh, while the respondent contended that the sentence was within the acceptable range and appropriately reflected the gravity of the offence.

Upon thorough analysis, the court concluded that the sentence was indeed a manifest excess. The court found that the nine-year sentence, coupled with the seven-year non-parole period, was excessively punitive and did not align with the sentencing principles applicable to similar cases. Consequently, the High Court granted the appellant leave to appeal, recognising the disproportionate nature of the sentence in relation to the offence committed. The court's decision underscores the importance of ensuring that sentences imposed are not only just but also proportionate to the crime, taking into account the broader principles of sentencing in Australian law.

Orders