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Tobin (a pseudonym) v The Queen

Tobin (a pseudonym) v The Queen

Case [2021] VSCA 180 23 June 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0077

WYATT TOBIN (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2021
DATE OF JUDGMENT:	23 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 180
JUDGMENT APPEALED FROM:	DPP v Tobin (a pseudonym) (Unreported, County Court of Victoria, Judge Mullaly, 18 October 2019)

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CRIMINAL LAW – Appeal – Sentence – Sexual assault of a child under 16, sexual penetration of a child under 12 – Victim three year old step-niece of applicant – Applicant diagnosed with moderate personality disorder – Sentenced to nine years’ imprisonment with non-parole period of five years and six months – Whether judge erred in concluding that principles in Verdins did not apply – Whether sentence manifestly excessive – Leave to appeal refused – R v Verdins (2007) 16 VR 269, O’Neill v The Queen (2015) 47 VR 369, Brown v The Queen [2020] VSCA 212 considered.

CRIMINAL LAW – Appeal – Procedure – Application for extension of time to file application for leave to appeal against sentence – Youthful offender – Delay caused by applicant’s solicitor – Extension of time granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A L Hands	Adrian Paull Criminal Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

KAYE JA
T FORREST JA:

The applicant pleaded guilty, before a judge in the County Court, to one charge of sexual assault of a child under the age of 16 years, and to one charge of sexual penetration of a child under the age of 12 years. After a plea presented on his behalf, he was sentenced, on 18 October 2019, to a total effective sentence of nine years’ imprisonment with a non-parole period of five years and six months.

The applicant’s sentence was constituted as follows:

Charge on Indictment J12212623	Offence	Maximum	Sentence	Cumulation
1	Sexual assault of a child under 16 (rolled-up charge) (contrary to s 49D of the Crimes Act 1958)	10 years	3 years	1 year
2	Sexual penetration of a child under 12 (contrary to s 49A of the Crimes Act 1958)	25 years	8 years	Base
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		5 years and 6 months
*Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		424 days
Section 6AAA Statement:		12 years’ imprisonment with a non-parole period of 9 years
Other Relevant Order:		Reporting pursuant to s 34 of the Sex Offenders Registration Act 2004 for a period of 15 years

The applicant seeks leave to appeal against sentence on the following grounds:

Ground 1:The learned trial judge misapplied the decision in DPP v O’Neill [2015] VSC 25 to…

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 Tobin (a pseudonym) v The Queen

Details

AGLC: Tobin (a pseudonym) v The Queen [2021] VSCA 180
Case: [2021] VSCA 180
Decision Date: 23 June 2021

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence imposed on Tobin (referred to pseudonymously) for crimes of sexual assault of a child under 16 and sexual penetration of a child under 12. The victim was the three-year-old step-niece of the applicant. Tobin was diagnosed with moderate personality disorder and was sentenced to nine years' imprisonment, with a non-parole period of five years and six months. The appeal contested the trial judge's conclusion that the principles in Verdins did not apply and argued that the sentence was manifestly excessive. The court also considered an application for an extension of time to file the application for leave to appeal, which was granted due to the delay caused by the applicant's solicitor.

The legal issues before the court were whether the trial judge had erred in concluding that the principles in Verdins did not apply to the case and whether the sentence was manifestly excessive. The Verdins principles pertain to the application of mitigating factors in sentencing, particularly where the offender has a mental disorder. The court also had to consider the appropriate weight to give to the applicant's personality disorder in determining the sentence. Additionally, the court considered the application for an extension of time to file the application for leave to appeal, given the delay caused by the applicant's solicitor.

In addressing these issues, the court found that the trial judge did not err in concluding that the Verdins principles did not apply in this instance. The court determined that the sentence was not manifestly excessive, taking into account the severity of the offences committed. The court found that the sentence imposed was appropriate and that there were no grounds for the appeal to succeed. The court also noted that the application for an extension of time was granted due to the delay caused by the applicant's solicitor. Consequently, the appeal against the sentence was dismissed, and the application for leave to appeal was refused.

No further orders were made by the court as the appeal against the sentence was dismissed, and the application for leave to appeal was refused. The court's decision upheld the original sentence imposed by the trial judge, finding it to be appropriate and not manifestly excessive.

Orders