JUDGES:	MAXWELL P and NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2019
DATE OF JUDGMENT:	4 February 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 6
JUDGMENT APPEALED FROM:	[2018] VCC 2222 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (3 charges) – Sexual assault of child under 16 (2 charges) – Complainant aged 15 – Appellant aged 19, severe intellectual disability – Appellant and complainant in relationship prior to offending – Exceptional case – Sentence 3 year community correction order (‘CCO’), 300 hours unpaid community work – Whether manifestly excessive – Whether CCO and unpaid work hours longer than necessary – Whether judicial monitoring necessary – Serious offences – Knowing and persistent disobedience of law – Discretion to fashion punitive component of CCO – No error – Appeal dismissed – Clarkson v The Queen (2011) 32 VR 361 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms G F Connelly	Greg Thomas Barrister & Solicitor
For the Respondent	Ms D Piekusis QC	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
NIALL JA:

Summary

The appellant pleaded guilty to three charges of sexual penetration of a child under 16 and two charges of sexual assault of a child under 16. The complainant (‘AB’) was aged 15 at the time. The appellant was 19. He has an intellectual disability. His full-scale IQ was assessed in 2018 at 69.

The appellant and AB had been in a relationship for a year before the first sexual offence was committed. The appellant also pleaded guilty to two charges of persistent contravention of a family violence intervention order, which prohibited contact between him and AB, and to one charge of damaging property and one charge of possession of child abuse material.

Recognising that sexual offending against children is ordinarily regarded as extremely serious, the sentencing judge concluded that this was an exceptional case, such that a non-custodial sentence was appropriate. He imposed a 3-year community correction order (‘CCO’), with attached conditions directed at the appellant’s rehabilitation but also requiring him to perform 300 hours of unpaid community work and to appear at the County Court for judicial monitoring of his compliance with the order.

The appellant was granted leave to appeal on the single ground that the sentence is manifestly excessive. He advances three principal contentions, as follows:

(a) the duration of the CCO is ‘longer than is necessary to meet all purposes of punishment’;

(b) the condition imposing 300 hours of unpaid community work ‘goes beyond what is necessary adequately to punish’ the appellant; and

(c) it is not necessary for the Court to review his compliance, such that a judicial monitoring condition should not have been imposed.

For reasons which follow, we would dismiss the appeal. We do not accept the appellant’s submission that, because of the circumstances which persuaded the judge to take…

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 Treloar v The Queen

Details

AGLC: Treloar v The Queen [2020] VSCA 6
Case: [2020] VSCA 6
Decision Date: 4 February 2020

CaseChat Overview and Summary

In the High Court of Australia, Treloar appealed against his sentence for multiple charges of sexual penetration and sexual assault of a child under 16 years old. The complainant, aged 15 at the time, was in a relationship with the appellant, who was 19 years old and had a severe intellectual disability. The appellant’s appeal centred on the contention that the sentence was manifestly excessive. The sentence comprised a three-year community correction order, including 300 hours of unpaid community work, and the appellant argued that the punitive component was longer than necessary and that judicial monitoring should have been imposed.

The central legal issue revolved around whether the sentence imposed was manifestly excessive given the nature of the offences and the appellant's intellectual disability. The court had to consider the principles of sentencing, particularly whether the sentence adequately reflected the seriousness of the crimes and the need for punishment, deterrence, and rehabilitation. Furthermore, the court needed to determine whether the imposition of a punitive community correction order and unpaid community work hours was justified and whether judicial monitoring was necessary.

The court found no error in the sentence imposed. It held that the sentence was not manifestly excessive, taking into account the exceptional circumstances of the case, including the appellant’s intellectual disability and the fact that the relationship was consensual. The court emphasised that the sentence needed to reflect the seriousness of the offences and the appellant's persistent disobedience of the law. The court referenced Clarkson v The Queen, holding that the sentence was proportionate and within the appropriate range for the crimes committed. Consequently, the appeal was dismissed.

The final orders of the court affirmed the original sentence, rejecting the appellant's appeal and confirming the sentence of a three-year community correction order with 300 hours of unpaid community work, without imposing judicial monitoring.

Orders