Legal Research
Cases
Tori v The King

Tori v The King

Case [2024] VSCA 162 16 July 2024

Appeal

Sentencing

Sexual assault of a child under the age of 16

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0187

ELI TORI	Appellant
v
THE KING	Respondent

---

JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	16 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 162
JUDGMENT APPEALED FROM:	DPP v Tori [2023] VCC 1696 (Judge Harper)

---

CRIMINAL LAW – Appeal – Sentence – Sexual assault of a child under the age of 16 – Appellant sexually assaulted a five-year-old child left in his care by her parents – Sentence of 4 years and 2 months’ imprisonment, upon which the judge fixed a non-parole period of 2 years and 6 months – Appellant aged 18 years at time of offending – Delay of more than three years between offending and sentence – Early guilty plea – Whether sentence manifestly excessive in light of youth, delay and other factors – Appeal allowed – Resentenced to 2 years and 6 months’ imprisonment with 18 months non-parole.

---

Counsel
Appellant:		Mr J Barreiro
Respondent:		Mr B Kissane KC
Solicitors
Appellant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

On 9 April 2019, the appellant, then aged 18 years,[1] sexually assaulted a five year old girl.
[1]His date of birth is 28 May 2000.
More than three years later, on 30 August 2023, the appellant pleaded guilty before a judge of the County Court to two charges of sexual assault of a child under 16[2] (charges 1 and 2).
[2]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1). The maximum sentence is 10 years’ imprisonment, and the standard sentence is four years.
Following a plea in mitigation, on 18 September 2023 the judge sentenced the appellant to four years’ imprisonment on charge 2 (the base sentence), and to two years and six months’ imprisonment on charge 1. Two months of the sentence on charge 1 was ordered to be served cumulatively with the sentence on charge 2, leading to a total effective sentence of four years and two months’ imprisonment, upon which the judge fixed a non-parole period of two years and six months.[3]
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the appellant to five years and six months’ imprisonment, with a non-parole period of three years and five months. The appellant was also registered under s 34 of the Sex Offenders Registration Act 2004, with reporting for eight years.
The appellant now appeals against his sentence[4] on a ground that contends that individual sentences, total effective sentence and non-parole period are manifestly excessive having regard to the appellant’s youth, vulnerability in custody and prospects of rehabilitation; the delay between the offending and the appellant being charged; and the utilitarian value of the appellant’s plea of guilty.
[4]On 19 March 2024, a judge of this Court granted 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 Tori v The King

Details

AGLC: Tori v The King [2024] VSCA 162
Case: [2024] VSCA 162
Decision Date: 16 July 2024

CaseChat Overview and Summary

The appellant, Tori, appealed against his sentence for the sexual assault of a child under the age of 16, the victim of which was a five-year-old child left in his care by her parents. The original sentence handed down was 4 years and 2 months imprisonment, with a non-parole period of 2 years and 6 months. The appellant was 18 years of age at the time of the offending, and the delay between the offence and the sentence was more than three years. Tori had entered an early guilty plea. The appeal was against the sentence, arguing it was manifestly excessive in light of the appellant's age, the delay, and other factors.

The legal issue before the court was whether the sentence was manifestly excessive. The appellant submitted that his youth and the delay in sentencing were significant mitigating factors. The Crown argued that the gravity of the offence warranted a lengthy sentence. The court needed to balance these considerations against the principles of sentencing for such a serious offence.

The court held that the original sentence was manifestly excessive. The court took into account the appellant's age at the time of the offence, the delay in sentencing, the early guilty plea, and the other mitigating factors presented. The court found that these factors warranted a reduction in sentence. The court resentenced the appellant to 2 years and 6 months imprisonment with an 18-month non-parole period. The appeal was allowed, and the original sentence was set aside.

Orders