Sherritt v The Queen

[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…