DPP v Tones (Unreported, County Court of Victoria, Judge Taft, 17 August 2016)
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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (6 charges), indecent act with child under 16 (6 charges) – Total effective sentence 7 years 7 months’ imprisonment, non-parole period 5 years 3 months’ imprisonment – Whether manifestly excessive – Persistent, exploitative offending – Plea of not guilty – Delay of six years – Considerations of fairness and rehabilitation – Whether reflected in sentence – No remorse or recognition of wrongfulness of offending – Current sentencing practices – Sentence moderate – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P S Kilduff
Stary Norton Halphen
For the Crown
Mr C B Boyce SC
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P REDLICH JA KYROU JA:
On 20 April 2016, the appellant, now aged 51, was found guilty by a jury in the County Court of six charges of sexual penetration of a child under the age of 16, contrary to s 45(1) of the Crimes Act 1958, and six charges of indecent act with a child under the age of 16, contrary to s 47(1) of that Act. All of the offences were committed against complainant ‘C’, except charge 5 which was committed against complainant ‘A’. The appellant was acquitted of eight other charges.
On 17 August 2016, the appellant was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
5
Indecent act with a child under 16
10 years
12 months
6 months
8
Indecent act with a child under 16
10 years
12 months
1 month
9
Indecent act with a child under 16
10 years
12 months
1 month
10
Sexual penetration of a child under 16
10 years
3 years
9 months
11
Indecent act with a child under 16
10 years
18 months
3 months
13
Sexual penetration of a child under 16
10 years
3 years
9 months
14
Indecent act with a child under 16
10 years
18 months
3 months
15
Sexual penetration of a child under 16
10 years
3 years
9 months
16
Sexual penetration of a child under 16
10 years
3 years
9 months
17
Indecent act with a child under 16
10 years
12 months
1 month
18
Sexual penetration of a child under 16
10 years
3 years
4 months
19
Sexual penetration of a child under 16
10 years
3 years
Base
Total Effective Sentence:
7 years and 7 months’ imprisonment
Non-Parole Period:
5 years and 3 months’ imprisonment
Pre-sentence detention declaration:
120 days
Other orders:
Sentenced as a serious sexual offender on charges 9, 10, 11, 13, 14, 15, 16, 17, 18 and 19.…
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.
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Details
AGLC
Tones v The Queen [2017] VSCA 118
Case
[2017] VSCA 118
Decision Date
CaseChat Overview and Summary
The appellant, Tones, appealed against his sentence for multiple charges of sexual penetration and indecent acts involving children under the age of 16. The case was heard in the High Court of Australia. Tones argued that his sentence, which amounted to a total effective term of 7 years and 7 months, with a non-parole period of 5 years and 3 months, was manifestly excessive. He pleaded not guilty and the delay in the proceedings was six years. The appeal centred on whether the sentence adequately reflected the considerations of fairness and the potential for rehabilitation, given the absence of remorse or recognition of the wrongfulness of his actions.
The legal issues that the court had to resolve included whether the sentence was manifestly excessive, the nature of the offences as persistent and exploitative, and whether the sentence appropriately balanced the principles of punishment, deterrence, and rehabilitation. The court also considered the delay in the proceedings and the lack of remorse displayed by the appellant. The court's task was to examine if the sentence was commensurate with the severity of the crimes and whether it was within the parameters of current sentencing practices.
The High Court found that the sentence was not manifestly excessive. It acknowledged the gravity of the offences and the appellant's lack of remorse but determined that the sentence was moderate in light of the circumstances. The court emphasised the importance of deterrence and the need to reflect current sentencing practices. It held that the sentence appropriately balanced the various considerations, including the delay in the proceedings and the appellant's plea of not guilty. Consequently, the appeal was dismissed.
No additional orders were made by the court beyond the dismissal of the appeal. The High Court upheld the original sentence imposed by the lower court, finding it to be within acceptable parameters for the crimes committed.