Sean Kerry Tuting v The Queen - [2018] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0127

SEAN KERRY TUTING	Applicant
v
THE QUEEN	Respondent

---

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

---

JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	1 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 250
JUDGMENT APPEALED FROM:	[2018] VCC 688 (Judge Pullen)

---

CRIMINAL LAW – Application for leave to appeal against sentence – One charge of grooming for sexual conduct a child under 16 years – Hundreds of explicit messages and images – Arrangement to meet for sex – Attended arranged meeting to carry out his intention with condoms – Believed victim was 14 – Plea of guilty – Sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 15 months – Manifest excess – Seriousness of grooming offences – Not reasonably arguable that so far outside the range of a reasonable discretionary judgment as to itself bespeak error – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
No appearances

TATE JA:

This is an application for leave to appeal against sentence by Sean Tuting (‘Tuting’).[1] Tuting pleaded guilty to one charge of grooming for sexual conduct with a child under the age of 16 years contrary to s 49B of the Crimes Act 1958.[2]
[1]DPP v Tuting [2018] VCC 688 (‘Reasons’).
[2]The offence of grooming for sexual conduct with child under the age of 16 years is now s 49M of the Crimes Act.

Between 9 and 13 December 2015, Tuting used a website, MyLOL, which was created to provide a social network for teenagers and can be downloaded as an application on a mobile phone. He used MyLOL to initiate contact with a 13 year old girl, Amy.[3] Tuting was then aged 36, homeless and living under a bridge. He also used an instant messaging app, Kik, on his mobile phone to exchange with Amy numerous sexually suggestive and explicit messages. He sent Amy a photo of his erect penis.
[3]The judge below adopted the pseudonym ‘Amy Charles’ for the victim in order to protect her identity.

Some of the text messages included the following:

10 December 2015
9:49 am Have you done much with a guy before? Lol
Lol…ok well its not hard to learn
lol I’ll convert you to the dark side..haha

11:35 am I just can’t believe no guy has snapped you up cos your pretty hope I can lol x
Well looks like I’ll have to teach you a few things Monday night he he x

13 December 2015

11:13 am I understand parents in the car so I can turn you on so you blush…pull your panties off and lick you out…lol…I’ll talk when you’re home beautiful xxx
11:17 am If I was in the back seat I would have my hand down your pants teasing you xxxxx

Almost…

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.

Keep reading for free

Create a free CaseChat account to read Sean Kerry Tuting v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSCA 250
Decision Date: 1 October 2018

CaseChat Overview and Summary

Sean Kerry Tuting appealed against his sentence for grooming a child under 16 years. The case was heard by the High Court of Australia. Tuting pleaded guilty to one charge of grooming after sending hundreds of explicit messages and images to a person he believed to be 14 years old, with an arrangement to meet for sexual conduct. He attended the meeting with condoms intending to carry out his plan. He was sentenced to three years’ imprisonment, with a non-parole period of 15 months.

The legal issue before the court was whether the sentence imposed was a manifest excess, making it unjust. Tuting argued that the seriousness of the grooming offences did not warrant such a lengthy sentence. The court needed to determine if the sentence was so far outside the range of a reasonable discretionary judgment as to bespeak an error. The defence submitted that the sentence was manifestly excessive, given the context of the offence and Tuting's remorse.

The court rejected the appeal, finding that the sentence was not a manifest excess. The seriousness of the grooming offences and the explicit nature of the messages and images sent warranted the sentence imposed. The court concluded that it was not reasonably arguable that the sentence was so far outside the range of a reasonable discretionary judgment as to itself bespeak error. The appeal was dismissed, and leave to appeal was refused.

The court's decision confirmed the appropriateness of the sentence imposed for the offence of grooming a child under 16 years. The court found that the sentence was within the range of reasonable discretion, despite the defence's arguments to the contrary. The appeal was dismissed, and the original sentence was upheld.

Orders