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.
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| 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) |
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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.
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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…
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- AGLC
- Shawcross v The Queen [2018] VSCA 295
- Case
- [2018] VSCA 295
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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