JUDGES:	MAXWELL P, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 July 2019
DATE OF JUDGMENT:	15 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 179	First Revision: 15 August 2019 paras [4] and [80]
JUDGMENT APPEALED FROM:	DPP v Schulz [2018] VCC 1058 (Judge Pullen); (22 March 2018 (Conviction); 10 July 2018 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Grooming, sexual penetration of child under 16, possession of child pornography – Evidence – Admissibility – Facebook messages – Whether able to be proved by tender of copies – Whether admissible as tendency evidence – Whether probative value outweighed danger of unfair prejudice – Whether verdicts unsafe – Evidence admissible – Verdicts reasonably open – Leave to appeal refused – Evidence Act 2008 ss 48, 71, 97, 101, 137, 161, Criminal Procedure Act 2009 s 276(1)(a).

CRIMINAL LAW – Appeal – Sentence – Grooming, sexual penetration of child under 16 (3), indecent act with child under 16, possession of child pornography – Sentence of 10 years and 4 months’ imprisonment, non-parole period of 7 years and 4 months’ imprisonment – Whether manifestly excessive – Child was under applicant’s care and supervision – Child’s vulnerability known to applicant – Serious breach of trust – Whether judge erred in determining length of grooming period – Crown concession with respect to sentence on one charge – Appeal allowed in part – Crimes Act 1958 s 45(1),(2).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I R Jones QC	Aitken Partners
For the Crown	Mr P L Bourke	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA
WEINBERG JA:

Following a trial before a jury, the applicant was convicted on six charges of sexual offending against a single complainant, a girl of 13 to 14 years of age at the time of the offences. The convictions were in respect of one charge of grooming;[1] one charge of an indecent act with a child;[2] three charges of sexual penetration (which related to two separate occasions);[3] and one charge of possessing child pornography, being photographs of the complainant taken by her and sent to the applicant’s mobile telephone.[4] The applicant was also convicted by the judge of two related summary offences of supplying alcohol to the complainant.
[1]Crimes Act 1958 (‘Crimes Act’) s 49B.
[2]Ibid s 47(1).
[3]Ibid s 45(1).
[4]Ibid s 70(1).

The applicant was acquitted of three other charges of sexual penetration of a child (charges 6, 8 and 9) and a charge of wilfully committing an indecent act with or in the presence of the complainant (charge 7).

Following a plea hearing on 26 June 2018, the judge sentenced the applicant, on 10 July 2018, to a total effective sentence of 10 years and four months’ imprisonment, with a non-parole period of seven years and four months. The sentence was structured as follows:

Charge on

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 Schulz v The Queen

Details

AGLC: Michael Schulz v The Queen [2019] VSCA 179
Case: [2019] VSCA 179
Decision Date: 15 August 2019

CaseChat Overview and Summary

The case of Schulz v The Queen involved an appeal against conviction and sentence by the applicant, Schulz, against the respondent, the Crown. The applicant was convicted of grooming, sexual penetration of a child under 16, indecent acts with a child under 16, and possession of child pornography. The trial judge found that the child was under Schulz's care and supervision, and he was aware of her vulnerability. The Court of Appeal was required to consider the admissibility of certain evidence, the safety of the verdicts, and the length of the sentence imposed.

The court examined the admissibility of Facebook messages and copies of pornographic material under the Evidence Act 2008. The court considered whether the probative value of the evidence outweighed the danger of unfair prejudice. The court found that the evidence was properly admitted as it was relevant to the charges and the probative value was not substantially outweighed by the danger of unfair prejudice. The court also found that the verdicts were reasonably open on the evidence.

The Court of Appeal considered whether the sentence was manifestly excessive. The court noted that the child was under Schulz's care and supervision, and he was aware of her vulnerability. The court found that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the breach of trust. The court did, however, allow the appeal in part with respect to the sentence on one charge, following a concession by the Crown.

The final orders of the Court of Appeal were that the convictions were upheld, but the sentence was varied in part. The non-parole period for the charge of sexual penetration of a child under 16 was reduced to 6 years. The appeal against conviction was otherwise dismissed, and leave to appeal to the High Court was refused.

Orders