Stanczewski v The Queen - [2021] VSCA 232

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0091

JASON STANCZEWSKI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2021
DATE OF JUDGMENT:	24 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 232
JUDGMENT APPEALED FROM:	[2019] VCC 2161 (Judge Pullen)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child under the age of 16 – Rolled-up charge – Singing teacher in sexual relationship with 13 year old female student – Delay of 15 years – Whether sentence of 5 years and 11 months with 3 years and 11 months non-parole manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Stanton	Pica Criminal lawyers
For the Respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

Introduction

Pursuant to leave to appeal granted ‘on the papers’,[1] the appellant contends that a sentence imposed upon him in the County Court for sexual offending against a child under 16 years is manifestly excessive.
[1]Stanczewski v The Queen (Unreported, Court of Appeal, Priest JA, 28 October 2020).

Having now had the benefit of full oral argument, I am not persuaded that the sentence imposed is wholly outside the range of sentences open in the sound exercise of the sentencing discretion. I would thus dismiss the appeal.

My reasons — which in large part recapitulate what I wrote when granting leave to appeal — follow.

Overview

In late 2002, when she was aged 12 years, ‘KB’ commenced singing lessons with the appellant, then aged 32.[2] When she was aged 13, the appellant commenced a sexual relationship with KB which continued until early 2005. The sexual activities in which they engaged included digital and penile penetration of KB’s vagina, and penile penetration of her mouth.
[2]KB was born in September 1990. The appellant’s date of birth is 7 September 1970.

On 10 December 2019, the appellant, now aged 50, pleaded guilty before a judge in the County Court to two charges of sexual penetration of a child under the age of 16[3] and two related summary offences of failing to comply with a direction to assist police.[4] The first charge of sexual penetration was a ‘rolled-up charge’ involving digital and penile penetration, and the second charge involved an act of fellatio.
[3]Crimes Act 1958, s 45(1). The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 465AAA. The maximum penalty is 2 years’ imprisonment.

Following a plea, on 17 December 2019 the judge imposed a total effective sentence of five years and 11 months’ imprisonment upon the appellant, with a non-parole period of three years and 11 months, in accordance with the following table:

Charge Offence Sentence Cumulation

1 Sexual penetration of a child under 16 years 5 years Base

2 Sexual penetration of a child under 16 years 3 years 6 months 11 months

Relate summary charges

6 Failing to comply with a…

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 Stanczewski v The Queen

Details

AGLC: Stanczewski v The Queen [2021] VSCA 232
Case: [2021] VSCA 232
Decision Date: 24 August 2021

CaseChat Overview and Summary

Stanczewski appealed against his sentence in the High Court, following his conviction for multiple counts of sexual penetration of a child under the age of 16. The relationship between the appellant, a singing teacher, and his 13-year-old student had commenced in 2002 and continued until 2005. The appellant was not charged until 2017. At first instance, the appellant was sentenced to 5 years and 11 months imprisonment, with a non-parole period of 3 years and 11 months. The appellant appealed against the sentence on the basis that it was manifestly excessive. The central issue before the court was whether the sentence was manifestly excessive. The court considered the gravity of the offence, the delay in reporting and charging, and the appellant’s culpability. The court held that the sentence was not manifestly excessive and dismissed the appeal. The court found that the sentence reflected the seriousness of the offending and took into account the delay in reporting and charging, as well as the appellant’s culpability. The court also found that the sentence was not manifestly excessive and that the appellant had not demonstrated any error in the primary judge’s assessment of the appropriate sentence. The appeal was dismissed, and the original sentence was upheld.

Orders