Sean Kerry Tuting v The Queen

[2018] VSCA 338

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0127

SEAN KERRY TUTING	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	10 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 338
JUDGMENT APPEALED FROM:	[2018] VCC 688 (Judge Pullen)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Grooming child under 16 for sexual conduct – Sentenced to 3 years, with non-parole period of 15 months – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent

PRIEST JA
BEACH JA:

1. At approximately 10:00  pm on 13 December 2015, the applicant, who was then 36 years of age, was arrested carrying a large backpack containing condoms, sleeping bags, a toothbrush and toothpaste.  He was on his way to a primary school oval where he had arranged to meet a 13 year old girl, who he had been grooming, with the intention of having sexual intercourse.  When questioned by police, the applicant said that he believed the girl he ‘intended to have sexual relations with’ was 14 years of age. 

1. The applicant pleaded guilty in the County Court to one charge of grooming for sexual conduct a child under the age of 16 years.  The maximum penalty applicable for this offence is 10 years’ imprisonment.

1. On 8 May 2018, a judge of the County Court (Judge Pullen) sentenced the applicant to three years’ imprisonment with a non-parole period of 15 months.  On 1 October 2018, a judge of this Court (Tate JA) refused the applicant’s application for leave to appeal holding, contrary to the applicant’s contention, that it was not reasonably arguable that the sentence imposed was manifestly excessive.[1]

   [1]Tuting v The Queen [2018] VSCA 250 (‘Reasons of Tate JA’).

1. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application for leave to appeal, contending again that the sentence imposed upon him was manifestly excessive.

1. Tate JA’s reasons give detailed consideration to the circumstances of the applicant’s offending, relevant matters in mitigation and the arguments made by the applicant in support of his contention that the sentence imposed upon him was manifestly excessive.  We have now reviewed all of these matters afresh for ourselves.  Having done so, we have come to the conclusion that, for the reasons given by Tate JA, the applicant’s complaint of manifest excess is not reasonably arguable.[2]  It would be mere supererogation to say more.

   [2]Reasons of Tate JA [1]–[31].

1. The application for leave to appeal will be refused.

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