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Rose v The Queen

Rose v The Queen

Case [2022] VSCA 112 14 June 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0011

ADAM ROSE (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and EMERTON JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF JUDGMENT:	14 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 112
JUDGMENT APPEALED FROM:	[2021] VCC 1877 (Judge Georgiou)

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CRIMINAL LAW – Appeal – Sentence – Four charges of indecent act with child under 16 – Five charges of sexual penetration of child under 16 – Sentence of 2 years 5 months’ imprisonment – Whether sentence manifestly excessive – Where applicant and complainant formed relationship after meeting at school – Where applicant 18 and complainant 14 years old – Where applicant put pressure on complainant to engage in sexual conduct – Whether insufficient weight given to applicant’s youth and immaturity – Where term of imprisonment would jeopardise applicant’s prospects of rehabilitation – Where applicant has served approximately 7 months’ imprisonment – Leave to appeal granted – Appeal allowed – Resentenced to 1 year community correction order – Clarkson v The Queen (2011) 32 VR 361, considered.

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Counsel
Applicant:		Ms M Casey and Mr N Mutton
Respondent:		Ms S Clancy
Solicitors
Applicant:	Brown McComish Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
EMERTON JA:

The applicant pleaded guilty in the County Court of Victoria to four charges of committing an indecent act with a child under 16[1] and five charges of sexual penetration of a child under 16.[2] He was sentenced on 19 November 2021 as follows:
[1]Contrary to Crimes Act 1958 s 47.
[2]Contrary to Crimes Act s 45.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Indecent act with child under 16	10 years	1 month	-
2	Indecent act with child under 16	10 years	2 months	-
3	Indecent act with child under 16	10 years	4 months	-
4	Indecent act with child under 16	10 years	6 months	1 month
5	Sexual penetration of child under 16	10 years	14 months	3 months
6	Sexual penetration of child under 16	10 years	12 months	2 months
7	Sexual penetration of a child under 16	10 years	18 months	Base
8	Sexual penetration of a child under 16	10 years	14 months	3 months
9	Sexual penetration of a child under 16	10 years	12 months	3 months
Total Effective Sentence:		2 years, 5 months’ imprisonment
Non-Parole Period:		1 year, 3 months
Pre-sentence Detention Declared:		NA
Section 6AAA Statement:		Total Effective Sentence 3 years 6 months Non Parole-Period 2 years 2 months
Other Relevant Orders: 1. Applicant found to be a registrable offender under the Sex Offenders Registration Act 2004, with life reporting period.

The applicant has applied for leave to appeal against his sentence on the single ground that the individual sentences and total effective sentence are manifestly excessive.
For the reasons that follow, leave to appeal will be granted and the appeal allowed. The sentence of imprisonment…

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 Rose v The Queen

Details

AGLC: Rose (a pseudonym) v The Queen [2022] VSCA 112
Case: [2022] VSCA 112
Decision Date: 14 June 2022

CaseChat Overview and Summary

The matter of Rose v The Queen involved an appeal against a sentence imposed on the applicant following his conviction on nine charges relating to sexual offences against a child. The applicant was found guilty of four counts of indecent acts with a child under 16 years old and five counts of sexual penetration of a child under 16. The case was heard in the Court of Appeal, where the applicant contested the severity of the 2 years and 5 months' imprisonment sentence imposed.

The central legal issue in this appeal was whether the sentence was manifestly excessive, considering the unique circumstances of the case. The applicant argued that insufficient weight was given to his youth and immaturity at the time of the offences, which occurred when he was 18 years old and the complainant was 14. Additionally, it was submitted that the term of imprisonment would jeopardise the applicant's prospects for rehabilitation. The applicant had already served approximately 7 months of his sentence at the time of the appeal.

The Court of Appeal considered the principles outlined in Clarkson v The Queen, which emphasise the importance of proportionality and the need to avoid imposing a sentence that would be excessively punitive for young offenders. The court held that the original sentence was indeed manifestly excessive, taking into account the applicant's age and the fact that he had already served a substantial portion of the sentence. Consequently, the appeal was allowed, and the applicant was resentenced to a 1-year community correction order. The court concluded that this alternative would better facilitate the applicant's rehabilitation and reintegration into society while still adequately addressing the seriousness of the offences committed.

Orders