Sherritt v The Queen

Case [2015] VSCA 1


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0239

BRUCE SHERRITT Applicant
v
THE QUEEN Respondent

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JUDGES: MAXWELL P and PRIEST JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 28 January 2015
DATE OF JUDGMENT: 28 January 2015
MEDIUM NEUTRAL CITATION: [2015] VSCA 1
JUDGMENT APPEALED FROM: DPP v Sherritt, (Unreported, County Court of Victoria, Judge Harbison, 16 October 2014)

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CRIMINAL LAW – Appeal –  Sentence – Sexual penetration of child under 10, indecent assault and attempted indecent assault – Total effective sentence four months’ imprisonment, two year community correction order with community work condition – Applicant aged between 14 and 17 at the time of offending – Offending took place 20–25 years ago – No subsequent offending – Applicant completely rehabilitated – Stable family and employment circumstances – Whether sentence manifestly excessive – Appeal allowed – Resentenced to community correction order for two years – Bond condition attached – Boulton v The Queen [2014] VSCA 342 applied — Sentencing Act 1991 ss 45(1), 48 JA.

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APPEARANCES: Counsel Solicitors
For the Applicant Mr M D Phillips Victoria Legal Aid
For the Crown Mr D A Trapnell QC Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

  1. I will invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

  1. More than 20 years ago, when the applicant was an adolescent, he committed a number of sexual offences against his half-sister, NH, who was a child between the ages of five and nine years.

  1. On 16 October 2014, the applicant pleaded guilty in the County Court to four charges of indecent assault[1] (charges 1, 2, 3 and 5), one charge of attempted indecent assault[2] (charge 4) and two charges of sexual penetration of a child under 10[3] (charges 6 and 7). 

    [1]Crimes Act 1958, s 44(1). The maximum penalty is five years’ imprisonment.

    [2]Crimes Act 1958, s 44(1) and common law. The maximum penalty is five years’ imprisonment.

    [3]Crimes Act 1958, s 47(1). The maximum penalty is 20 years’ imprisonment.

  1. He was sentenced the same day to a community correction order (‘CCO’) of two years’ duration on charges 1 to 5;  and to four months’ imprisonment, coupled with a CCO for two years, on charges 6 and 7.  The total effective sentence was thus four months’ imprisonment, with a two year CCO to commence upon completion of the term of imprisonment.  It was a condition of the CCO that the applicant complete 200 hours of community work over a period of two years.

  1. The applicant sought leave to appeal against sentence on a single ground which asserts that the sentence is manifestly excessive:

1.The total effective sentence imposed is manifestly excessive in the light of:

a.    the plea of guilty;

b.    remorse;

c.     the applicant being himself a child at the time the offences were

committed;

d.    the absence of prior or subsequent offending of any kind;

e.     the delay since the offending;

f.     the delay from the time of…

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Sherritt v The Queen [2015] VSCA 1
Case
[2015] VSCA 1
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CaseChat Overview and Summary

In the case of Sherritt v The Queen, the appellant, Sherritt, was convicted of sexual penetration of a child under 10, indecent assault, and attempted indecent assault. The Court of Appeal was tasked with reviewing the sentence imposed by the trial court, which was four months’ imprisonment followed by a two-year community correction order with a condition requiring community work. The case involved an assessment of whether this sentence was manifestly excessive given the nature and circumstances of the crimes, which occurred when the appellant was aged between 14 and 17, and the fact that the offences took place over 20 to 25 years ago with no subsequent offending. The appellant was also noted to be completely rehabilitated with stable family and employment circumstances.

The central legal issue before the court was whether the original sentence was manifestly excessive in light of the circumstances and principles of sentencing. The court considered relevant factors including the nature and gravity of the offences, the age of the appellant at the time of the offending, the time elapsed since the offences, the appellant's rehabilitation and current circumstances, and relevant precedents such as Boulton v The Queen. The court was required to determine if the sentence imposed by the trial court adequately balanced the need for punishment, deterrence, and rehabilitation.

The Court of Appeal found that the original sentence was indeed manifestly excessive. The court noted the significant period of time that had elapsed since the offences, the appellant's complete rehabilitation, and the lack of any subsequent offending. The court also considered the appellant's age at the time of the offending and his current stable family and employment circumstances. Applying the principles set out in Boulton v The Queen, the court held that a community correction order was more appropriate. The appeal was thus allowed, and the appellant was resentenced to a two-year community correction order with a bond condition attached, aligning with the principles of the Sentencing Act 1991.

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