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Sharman (a pseudonym) v The Queen

Sharman (a pseudonym) v The Queen

Case [2017] VSCA 241 6 September 2017

Appeal

Sentencing

Causation

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0200

CONNOR SHARMAN (A PSEUDONYM)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of certain persons, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant. The same pseudonym was adopted in the County Court.

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JUDGES:	REDLICH and TATE JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2017
DATE OF ORDERS:	13 June 2017
DATE OF REASONS FOR JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 241
JUDGMENT APPEALED FROM:	DPP v Sharman (a Pseudonym) (Unreported, County Court of Victoria, Judge Douglas, 8 September 2016)

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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Possession of child pornography – Weight to be given to full admissions – Doran discount – Complainant refusing to give statement – Offence known but proof of guilt dependent on confession – Need for transparency in applying discount to separate charges – Discount not apparent on both charges – Wrong maximum penalty considered – Appeal allowed – Appellant resentenced – R v Doran [2005] VSCA 271; Dawson v The Queen [2015] VSCA 166; Younan v The Queen [2017] VSCA 12 applied – JBM v The Queen [2013] VSCA 69; Latina v The Queen [2015] VSCA 102 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J O’Connor	Yang & Vale Pty Ltd
For the Crown	Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
TATE JA
CROUCHER AJA:

On 1 September 2016, the appellant pleaded guilty in the County Court at Melbourne to two charges of indecent act with a child under the age of 16 and one charge of possession of child pornography. He was sentenced on 8 September 2016 as follows:[2]

[2]DPP v Sharman (a Pseudonym) (Unreported, County Court of Victoria, Judge Douglas, 8 September 2016) [73]–[80] (‘Reasons’).

Charge

Offence

Maximum

Sentence

Cumulation

1 Indecent act with a child under the age of 16 [Crimes Act 1958 s 47(1) (‘CA’)] 10 years’ imprisonment 12 months’ imprisonment 5 months

2 Indecent act with a child under the age of 16 [CA s 47(1)] 10 years’ imprisonment 15 months’ imprisonment Base

3 Possession of child pornography [CA s 70(1)] 10 years’ imprisonment[3] 10 months’ imprisonment 2 months

Total effective sentence 22 months’ imprisonment

Non-parole period 15 months

Pre-sentence detention declared 9 days

6AAA statement: 36 months’ imprisonment with a non-parole period of 20 months.

Other relevant orders: Life registration under the Sex Offenders Registration Act 2004; forensic sample order; disposal order under the Confiscation Act 1997 relating to computer hard drives.
[3]The appellant was sentenced on the basis that the maximum penalty was 10 years’ imprisonment. At the date of his offending, the maximum penalty was 5 years’ imprisonment. See below.

On 13 June 2017, this Court granted leave and allowed the appeal. We…

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 Sharman (a pseudonym) v The Queen

Details

AGLC: Connor Sharman (a pseudonym)[1] v The Queen [2017] VSCA 241
Case: [2017] VSCA 241
Decision Date: 6 September 2017

CaseChat Overview and Summary

The case of Sharman v The Queen involved an appeal against a sentence imposed by the County Court of Victoria on the appellant, Sharman, who was convicted of indecent acts with a child under the age of 16 and possession of child pornography. The Supreme Court of Victoria was tasked with examining the propriety of the sentence. The appellant argued that the County Court had not properly applied the principles concerning sentencing discounts and maximum penalties. The central legal issues revolved around the appropriate weight to give to the appellant's full admissions and the application of the Doran discount, as well as whether the court had correctly assessed the maximum penalties for the separate charges.

The Supreme Court held that the County Court had erred in its application of the Doran discount and in considering the maximum penalties for the separate charges. The Court noted that the full admissions made by the appellant were a significant factor that warranted a discount, but the manner in which the discount was applied was not transparent. Moreover, the Court found that the County Court had applied the wrong maximum penalty for one of the charges, leading to an overestimation of the sentence. The Court emphasised the need for clarity in applying the Doran discount and ensuring that the maximum penalties are correctly identified for each charge. The Supreme Court concluded that these errors warranted an appeal and a subsequent resentencing of the appellant.

The Supreme Court of Victoria allowed the appeal and remitted the matter to the County Court for resentencing. The Court directed that the County Court reconsider the sentence with a proper application of the Doran discount and an accurate assessment of the maximum penalties. The appellant was to be resentenced by the County Court in light of these findings. This decision underscores the importance of precise and transparent application of sentencing principles to ensure justice is served.

Orders