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Underwood (a Pseudonym) v The Queen [No 2]

Underwood (a Pseudonym) v The Queen [No 2]

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0129

ZACHARY UNDERWOOD (A PSEUDONYM) (No 2)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	PRIEST and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 April 2018
DATE OF JUDGMENT:	9 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 87
JUDGMENT APPEALED FROM:	DPP v [Underwood] (Unreported, County Court of Victoria, Judge Dyer, 26 May 2017)

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CRIMINAL LAW — Appeal — Sentence — Rape and indecent assault — Multiple offences in the course of single transaction — Whether sentences should be concurrent or cumulative — Whether orders for cumulation manifestly excessive — Relevance of appellant spending two years in immigration detention between arrest and sentence — Effect of delay — Appeal allowed — Appellant resentenced — R v Renzella [1997] 2 VR 88 discussed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Turnbull Lawyers
For the Respondent	Mr B Sonnet	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
McLEISH JA:

Introduction

Pursuant to leave granted by Santamaria JA on 3 October 2017,[2] the appellant appeals against a total effective sentence of eight years and two months’ imprisonment, with a non-parole period of five years and eight months, imposed upon him in the County Court on 26 May 2017 for rape[3] and indecent assault.[4]
[2]Underwood (a pseudonym) v The Queen [2017] VSCA 282 (‘Leave Reasons’).
[3]Crimes Act 1958, s 38(1). The maximum sentence is 25 years’ imprisonment.
[4]Crimes Act 1958, s 39(1). The maximum sentence is 10 years’ imprisonment.

It is convenient to set out the sentence in tabular form:

Charge Offence Sentence Cumulation

1 Indecent assault 6 months 2 months

2 Rape [lingual/vaginal] 5 years 18 months

3 Rape [penile/vaginal][5] 5 years Base

4 Rape [penile/vaginal] 5 years 18 months

Total effective sentence 8 years and 2 months’ imprisonment

Non-parole period 5 years and 8 months

Pre-sentence detention 52 days

Other orders Sentenced as a serious sexual offender on charges 3 and 4

[5]The judge declared that, pursuant to s 6F of the Sentencing Act 1991, the appellant was sentenced as a serious sexual offender upon his conviction on charge 3.

There is a single ground of appeal, formulated as follows:

1. The sentences imposed on the charges of rape, the orders for cumulation, non-parole period and total effective sentence:
(i) are manifestly excessive; and
(ii)outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii)inconsistent with current sentencing practices for rape; and
(iv)resulted in a total effective sentence and non-parole period that was manifestly excessive.

It should be noted, however, that Santamaria JA refused leave ‘on the ground that the individual sentence imposed in respect of each of the three convictions for rape is manifestly excessive’, granting leave to appeal ‘on the ground that…

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

Case: [2018] VSCA 87
Decision Date: 9 April 2018

CaseChat Overview and Summary

The appellant, Underwood, was convicted of rape and indecent assault following a single transaction and appealed against his sentence. The Court of Appeal for the Supreme Court of Victoria was tasked with determining the appropriate sentence, specifically whether the sentences should run concurrently or cumulatively, and if the cumulative sentence was manifestly excessive. The court also considered the impact of the appellant spending two years in immigration detention between his arrest and sentencing, as well as the effect of the delay on the sentence.

The court examined the principles guiding the imposition of concurrent or cumulative sentences, particularly in cases involving multiple offences committed during a single transaction. The court acknowledged that the delay in sentencing due to the appellant's immigration detention was a mitigating factor, but it also noted that the offences were serious and warranted a substantial punishment. The court found that the original cumulative sentence was manifestly excessive given the circumstances, including the delay, and that a concurrent sentence would be more appropriate.

The Court of Appeal held that the original sentence was manifestly excessive and allowed the appeal. The court resentenced the appellant to serve the sentences concurrently, taking into account the delay and the appellant's time spent in immigration detention. The court referenced R v Renzella [1997] 2 VR 88 in its reasoning, which established that a significant delay in sentencing can be a mitigating factor. The court concluded that the original cumulative sentence did not reflect the appropriate balance between punishment and the mitigating circumstances.

The final orders of the court were that the appeal was allowed, and the appellant's sentences were to be served concurrently. The court's decision highlighted the importance of considering all relevant factors, including delays and personal circumstances, in the sentencing process. The resentenced terms provided a more balanced approach to the appellant's punishment, reflecting the court's consideration of the mitigating factors presented.

Orders