JUDGES:	WEINBERG and PRIEST JJA, and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 December 2014
DATE OF JUDGMENT:	16 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 330
JUDGMENT APPEALED FROM:	DPP v Scannell, (Unreported, County Court of Victoria, Judge Parsons; Conviction, 1 July 2014; Sentence, 7 August 2014)

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CRIMINAL LAW – Conviction – Application for leave to appeal – Sex offence allegedly committed in either 1969 or 1970 – Applicant convicted of buggery of young boy – Whether unreliable witness warning required – Whether penetration proven – Whether verdict unsafe and unsatisfactory – Application refused – Evidence Act 2008, s 165.

CRIMINAL LAW – Sentence – Application for leave to appeal – Old sex offence – Buggery of child – Applicant, aged 88 years, sentenced to two years’ imprisonment with non-parole period of 12 months – Whether sentence manifestly excessive – Whether sentence should have been suspended in whole or in part – Whether fixing non-parole period appropriate – Application granted and appeal allowed – Appellant resentenced to 15 months’ imprisonment, 10 months suspended.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Tehan QC with Mr M Perry	Michael Kelly & Co
For the Crown	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Priest JA.

PRIEST JA:

Introduction

Over 40 years ago, when the complainant was aged 12 years, he was the victim of a sexual offence committed by the applicant, a priest, in the presbytery of a Catholic parish in a Melbourne suburb.

The complainant, ‘JLF’, who was born in July 1958, and is now aged 56 years, told nobody of the offending until about 10 years ago, when he told his wife that a priest had ‘molested’ him. Later, in October 2010, he told his sister of the applicant’s abuse. A month afterward, on 10 November 2010, he made the first of three statements to police. Some 10 months following, on 14 September 2011, police interviewed the applicant, who denied any sexual impropriety with the complainant.

Another two years elapsed before the police charged the applicant. After a contested committal, the applicant was indicted on one charge of buggery. The trial commenced in the County Court on 23 June 2014. By today’s standards it was a remarkably quick trial, the jury retiring to consider their verdict early in the morning of 26 June 2014. After approximately four days’ deliberation, on 30 June 2014, by a majority the jury found the applicant guilty.

Following a plea, on 7 August 2014 the judge sentenced the applicant to be imprisoned for two years, and fixed a non-parole period of 12 months.

The applicant sought leave to appeal against conviction on two grounds, the first asserting that the verdict is unsafe and unsatisfactory, and the second contending that justice miscarried by virtue of…

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 Scannell v The Queen

Details

AGLC: Scannell v The Queen [2014] VSCA 330
Case: [2014] VSCA 330
Decision Date: 16 December 2014

CaseChat Overview and Summary

Scannell brought an appeal against his conviction and sentence for a sex offence involving a young boy that allegedly occurred in either 1969 or 1970. The High Court was tasked with considering whether the trial judge should have given an unreliable witness warning and if the evidence proved penetration. Additionally, the Court had to determine if the verdict was unsafe and unsatisfactory. The Court was also called upon to review the sentence, considering whether it was manifestly excessive and if it should have been suspended in whole or in part. Furthermore, the appropriateness of the non-parole period was examined.

The Court held that there was no basis for an unreliable witness warning as the trial judge had properly assessed the witness's credibility. The evidence did establish penetration, and the verdict was not unsafe or unsatisfactory. However, the sentence was found to be manifestly excessive and should have been suspended in part. The fixing of the non-parole period was also inappropriate.

Accordingly, the Court refused leave to appeal the conviction but granted leave to appeal the sentence. The appeal was allowed, and the appellant was resentenced to 15 months' imprisonment, with 10 months suspended. The non-parole period was also revised.

The final orders of the Court were that the conviction was upheld, but the sentence was altered to 15 months' imprisonment, with 10 months suspended, and the non-parole period was adjusted accordingly.

Orders