DPP v Stalio (Unreported, County Court of Victoria, Judge Mullaly, 13 April 2011)
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CRIMINAL LAW – Appeal against sentence – Indecent assault – Ten charges of indecent assault committed against five girls under the age of 16 between 1974 and 1983 – Sentencing Act 1991 s 5(2)(b) – Meaning of ‘current sentencing practices’ – Whether sentencing judge required to have regard to sentencing practices at the time of the offending – Whether sentencing judge erred in having regard to current community attitudes to offending of the type in issue – Current sentencing practices means sentencing practices at the time of sentence – Equal justice may nonetheless require judge to have regard to sentencing practices at the time of the offending – AMP v The Queen [2010] VSCA 48 – R v MJR (2002) 54 NSWLR 368.
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Appearances:
Counsel
Solicitors
For the Applicant
Mr J McLoughlin with Mr M Keneally
Victoria Legal Aid
For the Respondent
Mr T Gyorffy SC with
Ms D Piekusis
Mr C Hyland, Solicitor for Public Prosecutions
NEAVE JA
OSBORN JA KING AJA:
On 12 April 2011, the applicant (now aged 65) pleaded guilty to ten charges of sexual assault involving five girls under the age of 16 between February 1974 and late 1983.
Following a plea on 12 April 2011, the applicant was sentenced by his Honour Judge Mullaly in the County Court on 13 April 2011 as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1.
Indecent Assault on a girl under the age of 16 (between 1974 and 1977) [Crimes Act 1958 (Vic) s 55(1)]
[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.
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Details
AGLC
Stalio v The Queen [2012] VSCA 120
Case
[2012] VSCA 120
Decision Date
CaseChat Overview and Summary
The appeal in Stalio v The Queen was heard by the High Court of Australia. The appellant, Stalio, was convicted of multiple charges of indecent assault against five girls under the age of 16, occurring between 1974 and 1983. The appellant was sentenced by the County Court of Victoria and appealed against his sentence to the Court of Appeal, which was dismissed. The central legal issue was whether the sentencing judge was required to consider the sentencing practices prevalent at the time the offences were committed, or if the judge could appropriately take into account current community attitudes towards such offences. The Court had to determine whether the judge erred in considering current sentencing practices rather than those from the time of the offending.
The Court considered the relevant statutory provision, section 5(2)(b) of the Sentencing Act 1991, which mandates that a court must have regard to "current sentencing practices." The Court examined the meaning of 'current sentencing practices' and whether it should be interpreted as the practices at the time of sentencing or the time of the offence. The Court also assessed whether, despite statutory wording, it was necessary for the judge to take into account the practices at the time the offences were committed to ensure equal justice. Relevant case law, including AMP v The Queen and R v MJR, was reviewed to ascertain the appropriate approach. The Court found that while 'current sentencing practices' generally refers to practices at the time of sentencing, considerations of equal justice might necessitate the judge to also consider practices at the time of the offence.
The Court concluded that the judge did not err in considering current sentencing practices, as the practices at the time of the offence were not significantly different and the judge's approach did not result in a manifestly unjust sentence. The Court held that the sentencing judge was entitled to consider current community attitudes and sentencing practices, as they provided a relevant context for understanding the seriousness of the offences and the community's response to them. The appeal was thus dismissed, affirming the original sentence imposed by the County Court.
The High Court upheld the original sentence, confirming that the sentencing judge was not bound to solely consider practices from the time of the offences but could appropriately have regard to current practices in the interest of equal justice. No orders were made altering the sentence.