Senarath v The King - [2024] VSCA 306

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0159

MISSAKA SENARATH	Applicant
v
THE KING	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	11 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 306
JUDGMENT APPEALED FROM:	[2024] VCC 873 (Judge Hassan)

---

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Persistent sexual abuse of child outside Australia, grooming to make easier to engage in sexual activity with child outside Australia, using carriage service to solicit, and cause to be transmitted to self, child abuse material, possessing or controlling child abuse material obtained or accessed using carriage service and visually capturing genital or anal region (upskirting) – TES of 13 years and 8 months, with NPP of 9 years and 6 months – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.

---

Counsel
Applicant:		Ms M Brown
Respondent:		Ms R Champion
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Solicitor for Commonwealth Director of Public Prosecutions

BEACH JA:

On 26 March 2024, the applicant pleaded guilty in the County Court to two charges of using a carriage service to solicit child abuse material to be transmitted to himself, contrary to s 474.22(1) of the Criminal Code (Cth) (charges 1 and 3); nine charges of grooming a person to make it easier to engage in sexual activity with a child outside Australia, contrary to s 272.15A(1) of the Criminal Code (charges 2 and 4 to 11); one charge of persistent sexual abuse of a child outside Australia, contrary to s 272.11(1) of the Criminal Code (charge 12); and one charge of possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (charge 13). At the same time, he also pleaded guilty to one related summary charge of visually capturing a person’s genitals — upskirting, contrary to s 41B of the Summary Offences Act 1966.
On 11 June 2024, the applicant was sentenced as follows:[1]
[1]DPP (Cth) v Senarath [2024] VCC 873 (‘Reasons’).

Charge	Offence	Maximum	Sentence	Commencement date
1	Using a carriage service to solicit, and cause to be transmitted to self, child abuse material	15 years	3 months	11 August 2024
2	Grooming a person to make it easier to engage in sexual activity with a child outside Australia	15 years	3 years	11 August 2030
3	Using a carriage service to solicit, and cause to be transmitted to self, child abuse material	15 years	2 years	11 February 2034
4	Grooming a person to make it easier to engage in sexual activity with a child outside Australia	15 years	3 years	11 August 2031
5	Grooming a person to make it easier to engage in sexual activity with a child outside Australia	15 years	4 years	11 August 2031
6	Grooming a person to make it easier to engage in sexual activity with…

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 Senarath v The King

Details

AGLC: Senarath v The King [2024] VSCA 306
Case: [2024] VSCA 306
Decision Date: 11 December 2024

CaseChat Overview and Summary

In the matter of Senarath v The King, the respondent applied for leave to appeal against his sentence for his involvement in a series of serious offences involving the sexual abuse of a child outside Australia. The case was heard in the High Court of Australia. The respondent had been found guilty of grooming the child to facilitate sexual abuse outside Australia, using a carriage service to solicit and transmit child abuse material, and possessing or controlling such material. Additionally, he was convicted of visually capturing the genital or anal region of a person, commonly known as upskirting. The trial judge sentenced the respondent to a total effective sentence (TES) of 13 years and 8 months imprisonment, with a non-parole period (NPP) of 9 years and 6 months.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly excessive. The respondent contended that the sentence was manifestly excessive because it failed to adequately account for his guilty plea and other mitigating factors. The respondent argued that a sentence of this magnitude was disproportionate to the gravity of the offences and his personal circumstances. The Crown, on the other hand, submitted that the sentence was appropriate and not manifestly excessive, considering the heinous nature of the crimes and the need to protect the community and deter similar offending.

The court considered the principles of sentencing and the factors relevant to determining whether a sentence is manifestly excessive. The High Court held that the trial judge had carefully considered the principles of sentencing and had exercised his discretion in a manner consistent with the relevant legal principles. The court found that the sentence was not manifestly excessive and that it was not reasonably arguable that the sentence imposed was disproportionate to the gravity of the offences and the respondent's personal circumstances. Consequently, the court refused the application for leave to appeal against the sentence.

Orders