S J N v The Queen - [2012] VSCA 239

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0116

SJN	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2012
DATE OF JUDGMENT:	26 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 239
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Sexton, 26 April 2012)

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CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 – Remorse – Plea of guilty – Delay – Relevance of sentencing practices at time of offending – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A S Dickenson	Melasecca Kelly & Zayler
For the Crown	Mr C J Ryan SC	Mr C Hyland Solicitor for Public Prosecutions

BUCHANAN JA:

The applicant seeks leave to appeal against a sentence of 4 years’ imprisonment with a non-parole period of 2 years’ imprisonment which was imposed upon him when he pleaded guilty in the County Court to one count of sexual penetration with a child aged between 10 and 16 years.

The offence consisted of one act of sexual intercourse in 1997 when the complainant was living at the applicant’s house at the invitation of the applicant’s daughter, who was the same age as the complainant. The applicant was then aged 37 years and the complainant was aged 15 years and 6 months. The applicant met the complainant after the complainant and the applicant’s daughter were staying in a women’s refuge. The sentencing judge described the complainant as ‘a vulnerable child, who began receiving psychiatric attention the year before you offended against her, and she was at some stage diagnosed with chronic schizoaffective disorder.’

As a result of the act of intercourse the complainant became pregnant and gave birth to a child. The applicant left his wife and commenced a relationship with the complainant over a period of some three years, during which the complainant gave birth to another child.

The complainant left the applicant in 2000. The complainant died at the age of 28 years as a result of a heart attack.

The applicant worked as a truck driver. There were six children of his marriage, whom the applicant was supporting financially when he was sentenced. At the conclusion of his relationship with the complainant, the applicant entered into a relationship with another woman, by whom the applicant has had two children.

The applicant has an extensive history of offending. Between 1977 and 1996 there were 13 court appearances for offences which included assault, drug offences and firearm offences. In 2008 the applicant conspired to traffic in methylamphetamine, for which he was sentenced to a term of imprisonment. Since 1997 the applicant has been convicted of assaults, drug offences and breaches of intervention orders.

The first ground of the application is that the sentencing judge erred in finding that the applicant’s plea of guilty to the charge did not reflect any remorse for his crime.

In the course of her sentencing…

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 S J N v The Queen

Details

AGLC: S J N v The Queen [2012] VSCA 239
Case: [2012] VSCA 239
Decision Date: 26 September 2012

CaseChat Overview and Summary

The case before the court involved a defendant, S J N, who had been charged with sexual penetration of a child under the age of sixteen. The defendant had pleaded guilty, but the sentencing had been deferred to allow for the preparation of a pre-sentence report. The appeal was heard in the High Court of Australia, which had jurisdiction to hear the case on appeal from the Queensland Court of Appeal. The defendant contested the sentence imposed by the lower court, arguing that it was excessive and should be reduced.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The defendant argued that the sentence should be reduced on the basis of his early guilty plea and the delay in bringing the case to court. The defendant also contended that the sentencing practices at the time of the offending should be taken into account when determining the appropriate sentence. The Crown argued that the sentence was appropriate and reflected the seriousness of the offence.

The court held that the sentence was not manifestly excessive and that the defendant's arguments did not establish a point of principle warranting intervention by the High Court. The court found that the sentence was within the range of sentences that could be imposed for the offence and that the defendant's early guilty plea and the delay in bringing the case to court were properly taken into account by the lower court. The court also held that the sentencing practices at the time of the offending were not relevant to the determination of the appropriate sentence. The court concluded that the sentence was appropriate and did not establish a point of principle warranting intervention by the High Court.

The High Court dismissed the appeal and upheld the sentence imposed by the lower court. The defendant's appeal was dismissed, and the sentence remained unchanged.

Orders