SJ v The Queen

[2012] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0295
S J	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, REDLICH and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 August 2012
DATE OF JUDGMENT	28 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 237
JUDGMENT APPEALED FROM	DPP v S J (Unreported, County Court of Victoria, Judge Pilgrim, 24 January 2011)

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CRIMINAL LAW – Appeal against sentence – 21 charges of indecent acts with a child under 16; 11 charges of sexual penetration of a child under 16; two charges of possessing child pornography; and one charge each of procuring a minor for child pornography, producing child pornography, possession of a drug of dependence, using a carriage service to make child pornography and using a carriage service to access child pornography – Sentencing for State and Commonwealth offences – Failure to nominate commencement dates for State sentences – Nomination of a common non parole period for both State and Commonwealth sentences – Purported cumulation of groups of sentences without specifying a base sentence – Crown concession of error of approach – Discussion of proper approach to serious sexual offender provisions of the Sentencing Act1991 – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1  I agree with Osborn JA, for the reasons he gives, that the appeal should be allowed and that the appellant be resentenced as he proposes. 

REDLICH JA:

2  I would allow the appeal for the reasons given by Osborn JA and resentence the appellant as Osborn JA has proposed. 

OSBORN JA:

3  The appellant appeals from sentences imposed on 24 January 2011 in the County Court in respect of convictions for 21 charges of indecent acts with a child under 16; 11 charges of sexual penetration of a child under 16; two charges of possessing child pornography; and one charge each of procuring a minor for child pornography, producing child pornography, possession of a drug of dependence, using a carriage service to make child pornography and using a carriage service to access child pornography.  The last two convictions relate to Commonwealth offences, whereas the former relate to State offences. 

4  By reason of the extent, factual complexity and mixed jurisdictional character of the offending, the sentencing judge was confronted with a very difficult task. 

5  On 16 May 2012, Harper JA granted leave to appeal against the sentences imposed in the County Court on three grounds:

(1)       the learned sentencing judge erred by failing to nominate commencement dates for the State sentences in accordance with s 16(4) of the Sentencing Act 1989 (Vic.) (‘the Sentencing Act’);

(2)       the learned sentencing judge erred by imposing a common non-parole period in respect of the State and Commonwealth sentences;

(3)       the learned sentencing judge erred by ordering that groups of State sentences operate concurrently with other groups of sentences in…