Scott v The Queen - [2010] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 801

GARRY ALLAN SCOTT	Appellant
v
THE QUEEN	Respondent

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JUDGE:	NETTLE and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2010
DATE OF JUDGMENT:	18 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 320
JUDGMENT APPEALED FROM:	R v Scott (Unreported, County Court of Victoria, Judge Parsons, 1 September 2009)

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CRIMINAL LAW – Sentence – Sexual offences – Whether mistake as to applicable maximum penalty – Orders for concurrency with respect to fraud offences – Whether principle of totality correctly applied – Appeal allowed – Appellant re-sentenced – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G M Hughan	Casey Criminal Law
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I invite Justice Bongiorno to deliver the first judgment.

BONGIORNO JA:

On 3 August 2009, Gary Allan Scott pleaded guilty before the County Court at Melbourne to one count of sexual penetration of a child under the age of 16 years and one count of performing an indecent act with a child under the age of 16 years. Each of the counts was a representative count and was laid in substitution for eight similar counts on an earlier presentment to which the appellant had pleaded not guilty.

On 1 September 2009, Scott was sentenced to three years and six months' imprisonment on the first count and one year's imprisonment on the second count, six months of the term on the second count being cumulated on that imposed in respect of the first count. The total effective sentence was accordingly four years' imprisonment. As the prisoner was already serving a sentence of four and a half years' imprisonment with a non‑parole period of two years and nine months, imposed by a different judge of the same court for fraud offences on 25 June 2008, the sentencing judge had to take that sentence into account. He did so by ordering that one year of the sentence imposed in respect of the sex offences be served concurrently with the earlier imposed sentence for the fraud offences. This resulted in a total effective sentence of seven and a half years. Pursuant to s 14 of the Sentencing Act 1991 the judge fixed a new non‑parole period of five years. He ordered that that non‑parole period date from the date of the imposition of the fraud sentences, namely 25 June 2008.

Scott sought leave to appeal the severity of his sentence and was granted leave by Neave JA on 27 November 2009. That grant of leave was not opposed by the Crown as it was clear that, due to an error by the prosecutor (who was not counsel appearing for the Crown in this Court), the sentencing judge had been under

the mistaken belief that the maximum sentence for the offence of sexual penetration of a child under the age of 16 years…

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 Scott v The Queen

Details

AGLC: Scott v The Queen [2010] VSCA 320
Case: [2010] VSCA 320
Decision Date: 18 November 2010

CaseChat Overview and Summary

The appellant, Scott, was convicted of various sexual offences and fraud-related offences. Scott appealed his sentence, arguing that the sentencing judge erred in several respects. The High Court of Australia was tasked with determining whether the sentencing judge made an error in relation to the applicable maximum penalty, the principle of totality, and the concurrent sentencing of certain offences.

The primary legal issues before the court were whether the sentencing judge erred in calculating the maximum penalty, whether the principle of totality was correctly applied, and if the concurrent sentencing of certain offences was appropriate. The court needed to assess the correctness of the sentencing principles applied and whether the sentence imposed was proportionate and just.

The court found that the sentencing judge erred in calculating the maximum penalty applicable to the sexual offences, as the judge mistakenly believed that the maximum penalty was ten years imprisonment, when in fact it was fifteen years. The court also determined that the principle of totality was not correctly applied, as the cumulative effect of the sentences for the fraud offences was not adequately considered. Finally, the court held that the sentencing judge should have imposed concurrent sentences for the fraud offences rather than consecutive. The appeal was allowed, and the appellant was re-sentenced. The court did not find that the case presented any point of principle that warranted further discussion.

The court re-sentenced the appellant to a term of imprisonment, taking into account the correct maximum penalty and applying the principle of totality appropriately. The final orders of the court were that the appellant be re-sentenced with due consideration of the aforementioned legal principles.

Orders

Orders of the court

Appellant re-sentenced

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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