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Talbot (a Pseudonym) v The Queen

Talbot (a Pseudonym) v The Queen

Case [2016] VSCA 218 14 September 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0109

GABE TALBOT (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WEINBERG and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2016
DATE OF JUDGMENT:	14 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 218
JUDGMENT APPEALED FROM:	[2016] VCC 995 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Persistent sexual abuse of child under 16 (2 charges), incest (2 charges) – Two victims – Victims step-daughters of applicant – Victims aged between 11 and 18 – Plea of guilty – Offending caused a pregnancy for one victim, which was terminated – Impact on victims – Sentenced to total effective sentence of 15 years’ imprisonment with a non-parole period of 10 years – Whether manifestly excessive – Whether offending against one victim objectively less serious, requiring a lesser sentence – All sentences within range – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:
OSBORN JA:

Following pleas of guilty and a plea hearing on 26 April 2016, the applicant was convicted and sentenced on 9 May 2016 in the County Court by her Honour Judge Cannon as follows:

Charge on

Indictment

Offence

Maximum

Sentence

Cumulation

1.

Persistent sexual abuse of child under 16 years

[s 47A(1) of the Crimes Act 1958]

25 years

[s 47A(4) of the of the Crimes Act 1958]

9 years

Base

2.

Incest — by step‑parent

[s 44(2) of the Crimes Act 1958]

25 years

[s 44(2) of the of the Crimes Act 1958]

3 years

1 year

3.

Persistent sexual abuse of child under 16 years

[s 47A(1) of the Crimes Act 1958]

25 years

[s 47A(4) of the of the Crimes Act 1958]

9 years

4 years

4.

Incest — by step‑parent

[s 44(2) of the Crimes Act 1958]

25 years

[s 44(2) of the of the Crimes Act 1958]

3 years

1 year

TotalEffectiveSentence:

15 years’ imprisonment

Non-ParolePeriod:

10 years

Pre-sentence detention declared:

437 days

Section6AAAdeclaration:

The learned sentencing judge stated that the sentence she would have imposed if the applicant had been convicted of this offence after a trial would have been 19 years’ imprisonment with a non-parole period of 15 years.

Other relevant orders:

· Pursuant to s 6F of the Sentencing Act 1991, the offender is to be sentenced as a serious sexual offender after charge two which is to be noted in the records.

· Pursuant to s 464ZF of the Crimes Act 1958 the offender is to undergo a forensic procedure.

· Pursuant to s 34 of the Sex Offenders Registration Act

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 Talbot (a Pseudonym) v The Queen

Details

AGLC: Talbot v The Queen [2016] VSCA 218
Case: [2016] VSCA 218
Decision Date: 14 September 2016

CaseChat Overview and Summary

The appellant, referred to as Talbot, appealed against his sentence for a series of serious sexual offences involving his two step-daughters. These offences included persistent sexual abuse of a child under 16 and incest, with the victims aged between 11 and 18 at the time of the offences. The appellant pleaded guilty to the charges and was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 10 years. The High Court of Australia was tasked with determining whether the sentence was manifestly excessive and if the offending against one victim was objectively less serious, justifying a lesser sentence. The court also considered whether all sentences were within an appropriate range.

The primary legal issues before the court were whether the sentence imposed was manifestly excessive and whether the offending against one victim was less serious than the other, warranting a different sentence. The court assessed the gravity of the offences, the impact on the victims, and the appellant's culpability. The court also evaluated whether the sentences were within the appropriate range for such offences. In reviewing the sentence, the court took into account the totality of the offending, the nature of the relationship between the appellant and the victims, and the impact of the crimes on the victims.

The court found that the sentence was not manifestly excessive, given the gravity of the offences and the impact on the victims. The court emphasised the importance of deterrence and denunciation in sentencing for such serious crimes. The court rejected the argument that the offending against one victim was less serious than the other, noting that both victims suffered significant harm. The court concluded that all sentences were within an appropriate range for the offences committed. Consequently, the application for leave to appeal was refused.

The High Court's decision upheld the original sentence, highlighting the need for severe penalties for serious sexual offences against children, particularly when committed by a family member. The court's ruling underscored the importance of considering the totality of the offending and the impact on the victims when determining an appropriate sentence.

Orders