Legal Research
Cases
Shawcross v The Queen

Shawcross v The Queen

Case [2018] VSCA 295 14 November 2018

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0265

RYAN SHAWCROSS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	McLEISH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2018
DATE OF JUDGMENT:	14 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 295
JUDGMENT APPEALED FROM:	[2017] VCC 1757 (Judge Gucciardo)

---

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to persistent sexual abuse of child under 16 – Crimes Act s 47A – Complainant aged between 6 and 8 at time of offending – Complainant offender’s biological daughter – Whether sentencing judge erred in finding methamphetamine use was aggravating feature – Whether judge erred in holding DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 called for uplift in sentences for persistent sexual abuse of child – Appeal allowed – Sentence reduced to 9 years’ imprisonment with non-parole period of 6 years – DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, considered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Tony Hargreaves & Partners
For the Respondent	Ms E H Ruddle	Mr J Cain, Solicitor for Public Prosecutions

McLEISH JA
T FORREST JA:

On 26 October 2017 the applicant (now aged 32), pleaded guilty to one charge of persistent sexual abuse of a child under 16.[2] The maximum sentence for that offence is 25 years’ imprisonment. Following a plea hearing, he was sentenced on 23 November 2017 to 11 years’ imprisonment with a non-parole period of 7 years. He seeks leave to appeal against that sentence.

Circumstances of the offending[3]

[2]Crimes Act 1958 s 47A as amended by the Crimes (Sexual Offences) Act 2006 (see now s 49J).

[3]See Reasons for Sentence, DPP v Ryan Shawcross (a Pseudonym) [2017] VCC 1757 (‘Sentencing remarks’).

The applicant was in a de facto relationship with the complainant’s mother. Between January 2014 and May 2016 when the applicant was aged between 27 and 29, he sexually offended against their daughter, who was aged between 6 and 8 at the time.

The complainant’s mother worked as a personal care assistant, which required her to do shift work, including overnight. When she was at work, the complainant and her two younger brothers were under the applicant’s care. The applicant regularly sexually abused the complainant when her mother was at work, out of the house or in another room of the house.

The offending which made out the charge of persistent sexual abuse involved five particularised incidents on four occasions, as follows:

(a) The first occasion was when the complainant was 6 years of age. While she was in bed, the applicant gave her a tummy rub, which progressed to touching her on the vagina. The applicant later told her not to tell anyone.

(b) The second occasion was…

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 Shawcross v The Queen

Details

AGLC: Shawcross v The Queen [2018] VSCA 295
Case: [2018] VSCA 295
Decision Date: 14 November 2018

CaseChat Overview and Summary

In Shawcross v The Queen, the applicant appealed against the sentence imposed following his guilty plea to charges of persistent sexual abuse of a child under 16 years of age. The case was heard and determined in the Court of Appeal of the Supreme Court of Victoria. The applicant, Shawcross, was convicted of sexually abusing his biological daughter, who was between the ages of six and eight during the offending.

The central legal issues in this appeal were whether the sentencing judge erred in considering the applicant's use of methamphetamine as an aggravating factor and whether the judge incorrectly applied the decision in DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 to warrant an uplift in the sentence for persistent sexual abuse of a child. The court was required to assess the judge's reasoning and determine if the sentence imposed was appropriate under the circumstances.

The Court of Appeal found that the sentencing judge had erred in considering methamphetamine use as an aggravating factor, as it was not directly related to the offending conduct. The court also held that the sentencing judge had misapplied the principles set out in DPP v Dalgliesh, which did not call for an increase in sentences for persistent sexual abuse of a child. Consequently, the appeal was allowed, and the sentence was reduced to nine years' imprisonment with a non-parole period of six years. The court's decision underscores the importance of correctly applying legal principles and ensuring that aggravating factors are directly related to the offending conduct when determining an appropriate sentence.

Orders