JUDGES:	FERGUSON CJ, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2020
DATE OF JUDGMENT:	12 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 46
JUDGMENT APPEALED FROM:	[2019] VSC 585 (Kaye JA)

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CRIMINAL LAW – Appeal – Sentence – Murder – Sentenced to life imprisonment with non-parole period of 35 years – Whether sentence manifestly excessive – Whether sentencing judge erred by imposing a disproportionate sentence – Sexual sadism disorder primary cause of offending – Underlying paraphilic interest not able to be treated at present – Multiple mitigating factors including youth, plea of guilty, no prior convictions, dysfunctional circumstances of home life – Diminished mitigating effect of youth given seriousness of offending – Importance of general deterrence, denunciation, just punishment and community protection – Sentencing judge appropriately weighed mitigating factors and other sentencing considerations – Sentence within range of available sentencing options – Community protection not the only consideration in fixing a sentence of life imprisonment – Principle of parsimony not infringed – Sentence proportionate – Leave to appeal refused – Sentencing Act 1991 ss 5, 11, 11A – Veen v The Queen (No 2) (1988) 164 CLR 465, Azzopardi v The Queen (2011) 35 VR 43, Director of Public Prosecutions v Lawrence (2004) 10 VR 125 applied – Bugmy v The Queen (1990) 169 CLR 525, R v Ryrie (1993) 64 A Crim R 332 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich QC with Mr P J Smallwood and Mr J Barreiro	James Dowsley & Associates
For the Respondent	Mr B F Kissane QC with Ms A S Ellis	Ms A Hogan, Solicitor for Public Prosecutions

FERGUSON CJ
PRIEST JA
BEACH JA:

Eurydice Dixon was an aspiring and talented comedian. She regularly performed on the Melbourne comedy circuit. Her last appearance was at the 2018 Melbourne International Comedy Festival. On the way home after her performance that night, she was brutally sexually assaulted, raped and murdered.[1] Her attacker, the applicant Jaymes Todd, followed her from Flinders Street Station to Princes Park. That is where the violent attack that resulted in her death took place. She was only 22 when she was killed. She has left behind a grieving and loving family. Her death has had a very significant impact on them. Indeed the impact has been sorely felt by many in the broader community.
[1]The charges were one charge of rape, one charge of attempted rape, one charge of sexual assault and one charge of murder.

The applicant has a sexual sadism disorder. He has persistent thoughts and fantasizes about coercive violent sex involving suffering to a female victim. No presently available treatment can eliminate the paraphilic interest which underlies the disorder. The applicant also suffers from a mild form of autism spectrum disorder which plays a role in his addiction to violent online pornography. At the…

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 Todd v The Queen

Details

AGLC: Todd v The Queen [2020] VSCA 46
Case: [2020] VSCA 46
Decision Date: 12 March 2020

CaseChat Overview and Summary

The appellant, Todd, appealed against his sentence for murder, arguing that it was manifestly excessive and disproportionate. The case was heard in the Court of Appeal, where the appellant contended that his sexual sadism disorder was the primary cause of his offending and that, given the inability to treat this disorder at present, the sentence was disproportionate. The appellant further submitted that mitigating factors such as his youth, plea of guilty, no prior convictions, and dysfunctional home life were not adequately considered by the sentencing judge.

The court was required to determine whether the sentence was manifestly excessive and whether the sentencing judge had erred in imposing a disproportionate sentence. The court considered the principles of general deterrence, denunciation, just punishment, and community protection, along with the appellant’s mitigating factors. The court also examined whether the sentencing judge appropriately balanced these factors and whether the sentence was within the range of available sentencing options.

The Court of Appeal found that the sentencing judge had appropriately weighed the mitigating factors and other sentencing considerations. The court held that the principles of general deterrence, denunciation, just punishment, and community protection were adequately addressed. The sentence was not manifestly excessive, and it was proportionate given the nature and circumstances of the offence. The court also noted that the principle of parsimony was not infringed, and the sentence was within the range of available sentencing options. The appeal was dismissed, and leave to appeal was refused.

Orders