S S v The Queen - [2013] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0250

S S	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 March 2013
DATE OF JUDGMENT	28 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 68
JUDGMENT APPEALED FROM	DPP v [S S] (Unreported, County Count of Victoria, Judge Hannan, 12 October 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Applicant convicted of six charges of indecent act with a child under 16 and two charges of sexual penetration of a child under 16 — Total effective sentence of five years and five months’ imprisonment with non-parole period of three years and six months — Applicant masturbated in presence of, placed his penis in the mouth of, and masturbated 11 year old who attended classes at his gymnasium business — Whether sentence manifestly excessive — Applicant fell to be sentenced as serious sexual offender on some charges — Gross abuse of trust — No error in orders for cumulation — Application refused — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S R Johns	C D Traill Lawyers
For ther Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA

I agree with Coghlan JA.

COGHLAN JA:

On 11 October 2012 the applicant was convicted on the charges set out below and on the following day he was sentenced as follows.

Indictment C10273393 Offence Maximum Sentence Cumulation

1. Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958] 10 years 12 months 2 months

2. Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958] 10 years 18 months 4 months

3. Sexual penetration of a child under 16 years [s 45 of the Crimes Act 1958] 15 years 3 years Base sentence

4. Sexual penetration of a child under 16 years [s 45 of the Crimes Act 1958] 15 years 3 years 12 months

5. Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958] 10 years 12 months 2 months

6. Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958] 10 years 18 months 4 months

8. Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958] 10 years 12 months 2 months

9. Indecent act with a child under 16 years [s 47(1) of the Crimes Act 1958] 10 years 12 months 3 months

Total Effective Sentence: 5 years 5 months

Non-Parole Period: 3 years 6 months

Pre-sentence Detention Declared: 1 day

Sex Offenders Registration Act 2004 Life reporting obligation

NL was the victim of all charges. He was born on 30 April 1991 and was aged either 10 or 11 at the time of the offending, all of which occurred in the early part of 2001.

The applicant owned…

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 S v The Queen

Details

AGLC: S S v The Queen [2013] VSCA 68
Case: [2013] VSCA 68
Decision Date: 28 March 2013

CaseChat Overview and Summary

The applicant, S S, appealed against the sentence imposed following his conviction for multiple charges of indecent acts and sexual penetration involving a child under 16. The appeal was heard in the High Court of Australia, where the central issue was whether the sentence was manifestly excessive. S S was convicted of six counts of indecent acts and two counts of sexual penetration of an 11-year-old child, who attended classes at his gymnasium business. The trial judge sentenced him to a total effective term of five years and five months’ imprisonment, with a non-parole period of three years and six months.

The legal issue before the court was whether the sentence was manifestly excessive, taking into account the nature of the offences and the need for general and specific deterrence. The court examined the sentencing principles relevant to serious sexual offences, including the gravity of the offences and the degree of the applicant's abuse of trust. The court also considered the need for the sentence to reflect the seriousness of the crimes and to provide adequate deterrence. The applicant argued that the sentence was excessive and disproportionate to the offending.

The High Court found no error in the trial judge's sentencing orders. The court held that the sentence was neither manifestly excessive nor disproportionate to the offending. It noted the serious nature of the crimes, the gross abuse of trust, and the need for specific and general deterrence. The court also found that there was no error in the orders for cumulation, as the trial judge had appropriately considered the totality of the offending. The appeal was dismissed, and the court held that there was no point of principle of general application arising from the case.

No orders were made by the court as the application for leave to appeal was refused.

Orders