Russell v The Queen

[2011] VSCA 147

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 726 of 2009

DEAN PAUL RUSSELL

v

THE QUEEN

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JUDGES	BUCHANAN and NEAVE JJA and KAYE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 May 2011
DATE OF JUDGMENT	19 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 147
JUDGMENT APPEALED FROM	R v Russell (Unreported, County Court of Victoria, Judge Hannan, 30 June 2009)

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to two counts of sexual penetration of a child under 16 and three counts of indecent act with a child under 16 – Manifest excess – Relevance of sentencing statistics and comparable cases – Moderate/low risk of re-offending – Strong employment history – Severe depression – Serious predatory conduct – Breach of trust – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M D Stanton	Victoria Legal Aid
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I agree with Neave JA that the appeal should be dismissed.  I also agree with the observation of Kaye AJA as to the proper role of sentencing statistics and so‑called comparable cases.

1. A sentencing judge is required to have regard to, inter alia, current sentencing practices[1] and accordingly will take into account in the instinctive synthesis of relevant sentencing considerations statistics relating to sentences imposed for the offence and the results in comparable cases.

   [1]Section 5(2)(b) of the Sentencing Act 1991.

1. Counsel for the appellant in this case placed statistics at the forefront of his case and subjected a number of other sentencing decisions to a detailed analysis.  Counsel pointed to aspects of other cases said to disclose more serious offending than the present case and relied upon lesser sentences in those cases to argue that the judge in the present case erred.

1. In my opinion, such an approach is misconceived.  Cases said to be comparable can do no more than provide a general guide, impression or background.[2]  They are not a benchmark that acts as a straightjacket.  Further, such an approach runs the risk of adding or subtracting periods of time to reflect aggravating and mitigating factors present or absent in the cases being compared.  As Kaye AJA has explained, statistics are an even rougher guide to an appropriate range.

   [2]Hudson v The Queen [2010] VSCA 332, [31] (Ashley, Redlich and Harper JJA); Hili v The Queen (2010) 85 ALJR 195, 211 (Heydon J).

1. In the present case, I consider that, having regard to the circumstances of the offence and the offender, the sentence imposed upon the appellant was not one which a reasonable sentencing judge could not have imposed.

NEAVE JA:

1. The appellant, Dean Paul Russell, pleaded guilty to two counts of sexual penetration of a child under 16 (counts 1 and 5) and three counts of indecent act with a child under 16 (counts 2, 3 and 4).  After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the appellant as…