JUDGES:	WEINBERG, WHELAN and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2014
DATE OF JUDGMENT:	25 November 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 304
JUDGMENT APPEALED FROM:	DPP v SLS [2014] VCC 109 (Judge Cannon)

---

CRIMINAL LAW – Appeal against sentence – Indecent acts with child under 16 years – Common assault –Production of child pornography – Total effective sentence of 5 years – Non-parole period of 3 years – Appellant caring for complainant – Great age disparity – Gross breach of trust - Significance of ‘comparable cases’ – Sentence not manifestly excessive – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr John McLoughlin	Victoria Legal Aid
For the Crown	Mr D Trapnell QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I have had the advantage of reading in draft the reasons for judgment prepared by Santamaria JA. I agree with his Honour that this appeal should be dismissed.

WHELAN JA:

I agree with Santamaria JA.

SANTAMARIA JA:

In October 2013, the appellant (now aged 61), was found guilty of five charges related to sexual offending against a child under 16. Following a plea, the appellant was sentenced on 21 February 2014 as follows:[1]
[1]DPP (Vic) v SLS [2014] VCC 109 (‘Reasons’).

Charge	Offence	Maximum Penalty	Sentence	Cumulation
1	Indecent act with a child under 16 [s47(1) of the Crimes Act 1958]	10 years	14 months	+ 3 months
2	Common assault [Common Law]	5 years	1 month	-
3	Indecent act with a child under 16 [s47(1) of the Crimes Act 1958]	10 years	4 years 6 months	Base
4	Produce child pornography [s68(1) of the Crimes Act 1958]	10 years	8 months	+ 1½ months
5	Produce child pornography [s68(1) of the Crimes Act 1958]	10 years	8 months	+ 1½ months
Total Effective sentence:		5 years’ imprisonment
Non-Parole Period:		3 years
Pre-sentence detention declared:		114 days
Other orders: Sentenced as a serious sexual offender on Charges 4 and 5. Forensic sample ordered pursuant to Crimes Act 1958 s 464ZF Noted that by operation of the Sex Offenders Reporting Act 2004 required to comply with the provisions of that Act for 8 years from date of release

Ground of Appeal

On 23 July 2014, Osborn JA granted leave to appeal on the following ground:

1.The sentence imposed on Charge 3 and the total effective sentence are manifestly excessive having regard to:
a.The limited nature of the offending;
b.The [appellant’s] age, previous good character and good prospects of rehabilitation;

c. His poor physical health;
d. His strong sense of shame for disgracing his family;
e.The findings that he would find imprisonment more onerous than an ordinary prisoner and that prison would have a deleterious effect on his mental health; and

f. Current sentencing practices.

At the hearing of the appeal, counsel for the appellant confirmed that…

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 Soo v The Queen

Details

AGLC: Soo v The Queen [2014] VSCA 304
Case: [2014] VSCA 304
Decision Date: 25 November 2014

CaseChat Overview and Summary

The appellant, Soo, was convicted of indecent acts with a child under 16 years, common assault, and production of child pornography. He appealed against his sentence, arguing that it was manifestly excessive. The appeal was heard by the High Court of Australia. The court was tasked with determining whether the sentence imposed was manifestly excessive and whether the appellant's care for the complainant and the significant age disparity warranted a reduction in sentence. Additionally, the court considered the gravity of the offences, the breach of trust, and the need for deterrence and denunciation.

The court examined the nature and circumstances of the offences, including the significant age disparity and the breach of trust. It found that the appellant's care for the complainant did not mitigate the gravity of the offences. The court also considered comparable cases and concluded that the sentence was not manifestly excessive. The appeal was dismissed as the sentence reflected the seriousness of the offences and the need for appropriate punishment and deterrence.

The High Court held that the sentence of five years with a non-parole period of three years was not manifestly excessive. The court found that the sentence appropriately reflected the seriousness of the offences and the need for deterrence and denunciation. The court also noted that the sentence was within the range of sentences typically imposed for similar offences. The appeal against sentence was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of five years imprisonment with a non-parole period of three years was upheld. The court found that the sentence was not manifestly excessive and appropriately reflected the gravity of the offences and the need for deterrence and denunciation. The court also noted that the sentence was within the range of sentences typically imposed for similar offences.

Orders