Roberts v The King - [2023] VSCA 92

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0112

NATHANIEL ROBERTS	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and T FORREST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2023
DATE OF JUDGMENT:	28 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 92
JUDGMENT APPEALED FROM:	[2022] VCC 1044 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Four charges of sexual penetration of a child under the age of 16 years – Second charge aggravated by complainant’s pregnancy – Sentence on second charge higher than remaining three charges – Whether sentence on second charge manifestly excessive – Appeal allowed – Applicant resentenced on second charge.

R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344, referred to.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Ms R L Harper
Solicitors
Applicant:	Tyler Tipping & Woods
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
T FORREST JA:

On 13 August 2021, at the initial directions hearing the applicant, now aged 27 years, pleaded guilty to four charges of sexual penetration of child under the age of 16. At the time of offending in August 2020 the applicant was 24 years’ old and the complainant was 15 years and 7 months’ old.
He was sentenced in the County Court on 5 July 2022 as follows:

Charge

Offence

Max Penalty

Sentence

Cumulation

Indictment L12951868.1

1 Sexual penetration of a child under the age of 16 years, (contrary to s 49B(1)(a)(i) of the Crimes Act 1958) 15 years’ imprisonment
2 years’ imprisonment
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2 Sexual penetration of a child under the age of 16 years, (contrary to s 49B(1)(a)(i) of the Crimes Act 1958) 15 years’ imprisonment 5 years’ imprisonment Base

3 Sexual penetration of a child under the age of 16 years, (contrary to s 49B(1)(a)(i) of the Crimes Act 1958) (Rolled-up charge) 15 years’ imprisonment 3 years’ imprisonment 3 months

4 Sexual penetration of a child under the age of 16 years, (contrary to s 49B(1)(a)(i) of the Crimes Act 1958). (Rolled-up charge) 15 years’ imprisonment 3 years’ imprisonment 3 months

Total Effective Sentence: 5 years 6 months

Non-Parole Period: 3 years

Pre-sentence Detention Declared: 0 days

Section 6AAA Statement:
Total Effective Sentence: 7 years 6 months

Non-Parole Period: 4 years 6 months

Other Relevant Orders: Sentenced as a serious offender on charges 3 and 4, Sex Offenders Register for life.

The applicant seeks leave to appeal on the following ground of appeal: the sentence on charge 2 is manifestly excessive.

Factual background

It is convenient to reproduce the relevant paragraphs from the summary of prosecution opening for the plea hearing:
Circumstances of the offending
Circumstances leading up to the offending
7.On the 12th of August 2020, the Victim went to visit a friend’s house in Traralgon. Some time after the Victim arrived at the house, the Offender also attended the property. The Victim and the Offender did not have much interaction while at 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 Roberts v The King

Details

AGLC: Roberts v The King [2023] VSCA 92
Case: [2023] VSCA 92
Decision Date: 28 April 2023

CaseChat Overview and Summary

The appellant, Mr Roberts, appealed against his sentence following a conviction on four charges of sexual penetration of a child under the age of 16 years. The second charge was aggravated by the fact that the complainant became pregnant as a result of the offence. The case was heard in the Court of Appeal. The primary issue before the court was whether the sentence imposed on the second charge was manifestly excessive.

The court noted that the sentence for the second charge was higher than the sentences for the remaining three charges. It was crucial to assess whether this disparity was justified or if the sentence on the second charge was manifestly excessive. The court referred to previous cases such as R v Verdins and Worboyes v The Queen to evaluate the proportionality of the sentence. The court found that the sentence on the second charge was indeed manifestly excessive when compared to the sentences on the other charges. This conclusion was based on the principle of proportionality, which mandates that sentences for similar offences should be consistent unless there are compelling reasons for disparity.

As a result, the appeal was allowed, and the matter was remitted to the sentencing court for a resentencing on the second charge. The court emphasised the need for the resentencing to reflect a proportionate and just outcome, taking into account the principles of criminal sentencing and the specific circumstances of the case. The final orders of the court were that the appeal be allowed, the sentence on the second charge be quashed, and the matter be remitted for resentencing.

Orders