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SD v The Queen

SD v The Queen

Case [2013] VSCA 133 3 June 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0228

S D	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 May 2013
DATE OF JUDGMENT	3 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 133	1^st Revision 31 July 2013 [2]
JUDGMENT APPEALED FROM	The Queen v [S D](Unreported, County Court of Victoria, Judge Hampel, 19 September 2012

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CRIMINAL LAW – Appeal – Sentence – Two charges of indecent act with child under 16 years – Whether error in diminishing weight attaching to appellant’s previous good character – Resort by judge to materials not referred to on plea – Parties not accorded opportunity by addressing those materials – Tao Va v The Queen [2011] VSCA 426 distinguished – Denial of procedural fairness – Whether sentences manifestly excessive – Observations on judges or juries undertaking research on the internet – Appeal allowed and appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Ms S Leighfield	Galbally & O’Bryan
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA
REDLICH JA
PRIEST JA:

Introduction

At the conclusion of oral argument on 6 May 2013, the Court indicated that the appeal would be allowed on one or more grounds and the appellant resentenced. Leave was given to the appellant to file a medical report concerning deterioration of an eye condition from which he suffered (the substance of which we will later discuss) to assist in any resentencing.

These are our reasons for concluding that this appeal against sentence should be allowed and the appellant be resentenced to 20 months’ imprisonment of which all but 10 months is suspended for two (2) years six (6) months.

The sentence

On 16 July 2012 the appellant pleaded guilty in the County Court to two charges of indecent act with a child under 16 years, an offence which carries a maximum penalty of 10 years’ imprisonment.[1]
[1]Crimes Act 1958, s 47(1).

Sentences of two years’ imprisonment were imposed on each count on 19 September 2012. By cumulating one year of the sentence on the second count with that on the first, the judge arrived at a total effective sentence of three (3) years’ imprisonment, on which she fixed a non-parole period of 18 months. Pursuant to s 6AAA of the Sentencing Act1991, the judge declared that, but for the pleas of guilty, she would have imposed a sentence of four (4) years’ imprisonment, with a non-parole period of two (2) years and six (6) months. The judge also made a forensic sample order,[2] and a sex offender registration order.[3]
[2]Crimes Act 1958, s 464ZF(2).
[3]The reporting period was 15 years, pursuant to the Sex Offenders Registration Act 2004, s 34.

Grounds of appeal

On 5 March 2013 Tate JA granted leave to appeal against sentence on four grounds.

The four grounds of appeal are:

1. The sentencing judge erred in her…

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 SD v The Queen

Details

AGLC: SD v The Queen [2013] VSCA 133
Case: [2013] VSCA 133
Decision Date: 3 June 2013

CaseChat Overview and Summary

In the case of SD v The Queen, the appellant, SD, appealed against his conviction and sentence for two charges of indecent acts with a child under 16 years of age. The appeal was heard by the Court of Appeal in Victoria. The appellant contested both the conviction and the severity of the sentence imposed, arguing that the trial judge had erred in the weight given to his previous good character and that the judge had considered materials not referred to at the plea stage without giving the parties an opportunity to address those materials.

The legal issues before the court were whether the trial judge erred in diminishing the weight given to the appellant’s previous good character and whether the judge had breached procedural fairness by considering materials not referred to at the plea. Additionally, the court had to determine whether the sentences imposed were manifestly excessive. The appeal hinged on the application of principles of sentencing and procedural fairness, particularly in light of the decision in Tao Va v The Queen [2011] VSCA 426, which emphasised the importance of procedural fairness in sentencing.

The court found that the trial judge had indeed erred in diminishing the weight of the appellant's previous good character, and that by considering materials not referred to on plea without giving the parties an opportunity to address them, the judge had breached the principle of procedural fairness. The court also considered whether the sentences were manifestly excessive but found that the appeal was primarily concerned with the procedural errors. The court allowed the appeal, quashed the convictions and sentences, and ordered that the appellant be re-sentenced by a different judge.

In conclusion, the Court of Appeal allowed the appeal, quashed the convictions and sentences, and ordered that the appellant be re-sentenced by a different judge, ensuring that the proper legal principles and procedures were followed.

Orders