Szeto v The Queen - [2012] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0317

GARY FUN SZETO
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 July 2012
DATE OF JUDGMENT:	25 July 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 155
JUDGMENT APPEALED FROM:	DPP v Szeto (Unreported, County Court of Victoria, Judge Thornton, 13 December 2011)

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CRIMINAL LAW – Appeal against sentence – Three charges of committing indecent act with a child aged 16 or 17 under his care, supervision or authority and nine charges of sexual penetration of a child aged 16 or 17 under his care, supervision or authority − Total effective sentence of five years and seven months with non-parole period of three years – Whether individual sentences are inconsistent – Whether sentencing judge erred in her orders for cumulation − Appeal allowed on one ground – Total effective sentence reduced to five years with non-parole period of two and a half years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Croucher SC	Anthony Isaacs
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I agree with Mandie JA.

MANDIE JA:

On 18 November 2011, the appellant pleaded guilty in the County Court to three charges of committing an indecent act with a child aged 16 or 17 under his care, supervision or authority[1] (Charges 1, 2 and 9) and nine charges of sexual penetration of a child aged 16 or 17 under his care, supervision or authority[2] (Charges 3-8 and 10-12).[3]
[1]Section 49(1) of the Crimes Act 1958 (Vic) provides that ‘[a] person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority’ (5 years maximum).
[2]Section 48(1) of the Crimes Act1958 (Vic) provides that ‘[a] person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority’ (10 years maximum).
[3]In this case, the serious sexual offender provisions applied from the third conviction forward. Pursuant to s 6B(2) Sentencing Act 1991, the serious sexual offender provisions apply if a sentence of imprisonment is imposed on two qualifying offences and the offences with which the appellant was charged are all qualifying offences. The prosecution did not assert that a disproportionate sentence under s 6D Sentencing Act 1991 was required in these circumstances and the sentencing judge accepted that proposition: DPP v Szeto (Unreported, County Court of Victoria, Judge Thornton, 13 December 2011) (‘Reasons for Sentence’), [4].

On 13 December 2011, the appellant was sentenced to six months’ imprisonment for each of the charges alleging an indecent act with a child under his…

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 Szeto v The Queen

Details

AGLC: Szeto v The Queen [2012] VSCA 155
Case: [2012] VSCA 155
Decision Date: 25 July 2012

CaseChat Overview and Summary

The appellant, Szeto, was convicted of three charges of committing an indecent act with a child aged 16 or 17 under his care, supervision or authority, and nine charges of sexual penetration of a child aged 16 or 17 under his care, supervision or authority. Szeto was sentenced to a total effective sentence of five years and seven months with a non-parole period of three years. Szeto appealed against his sentence to the High Court of Australia.

The primary legal issue before the court was whether the individual sentences imposed by the sentencing judge were inconsistent and whether the judge erred in her orders for cumulation. The appellant contended that the sentences were manifestly inadequate and excessive. The respondent argued that the sentences were appropriate and that the judge had correctly exercised her discretion in ordering cumulation.

The High Court found that the sentences were manifestly inadequate and that the sentencing judge had erred in her orders for cumulation. The court held that the individual sentences were inconsistent and that the non-parole period was excessive. The court reduced the total effective sentence to five years with a non-parole period of two and a half years.

The final orders of the court were that the appeal was allowed on one ground, the total effective sentence was reduced to five years with a non-parole period of two and a half years, and the case was remitted to the Court of Appeal for re-sentencing.

Orders