Vida (a pseudonym) v The Queen - [2021] VSCA 357

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0144

ASHTON VIDA (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2021
DATE OF JUDGMENT:	17 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 357
JUDGMENT APPEALED FROM:	[2021] VCC 1314 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – False imprisonment, intentionally causing injury and indecent assault – Total effective sentence 2 years and 7 months’ imprisonment with 3 year community correction order – Whether individual sentences, orders for cumulation and community correction order manifestly excessive – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G F Connelly with Mr W Blake	McFarlane Criminal Lawyers
For the Respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

The applicant pleaded guilty on 20 July 2021 to the charges set out in the table below and, on 9 September 2021, he was sentenced by a County Court judge as set out in that table:[2]
[2]DPP v Vida (a pseudonym) [2021] VCC 1314 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 False imprisonment [Crimes Act 1958 s 320] 10 years 2 years Base

2 Intentionally causing injury [Crimes Act s 18] 10 years 18 months 3 months

3 Indecent assault [Crimes Act s 39] 10 years 20 months 4 months

Total effective sentence: 2 years and 7 months’ imprisonment

Pre-sentence detention declaration: 679 days

Section 6AAA statement: 8 years’ imprisonment with a non-parole period of 6 years

Charge	Offence	Maximum	Sentence	Cumulation
1	False imprisonment [Crimes Act 1958 s 320]	10 years	2 years	Base
2	Intentionally causing injury [Crimes Act s 18]	10 years	18 months	3 months
3	Indecent assault [Crimes Act s 39]	10 years	20 months	4 months
Total effective sentence: 2 years and 7 months’ imprisonment
Pre-sentence detention declaration: 679 days
Section 6AAA statement: 8 years’ imprisonment with a non-parole period of 6 years

The judge also ordered the applicant to serve a community correction order (‘CCO’) for a period of 3 years.[3] In addition to the mandatory terms, the CCO contains conditions requiring supervision, treatment and rehabilitation, and judicial monitoring.
[3]Having regard to the pre-sentence detention of 679 days, the prospective term of imprisonment to be served by the applicant was less than 12 months.

Due to the lengthy pre-sentence detention and accrued emergency management days, the applicant’s term of imprisonment is due to expire on 12 February 2022.

The applicant has sought leave to appeal against his sentence on the ground that the individual sentences, orders for cumulation and CCO are manifestly excessive in all the circumstances.

At the hearing of the application for leave to appeal, following the applicant’s oral submissions, we made an order refusing the application for leave to appeal without requiring the Crown to make oral submissions. We stated that we would publish our reasons in a few days’ time. These are our reasons.

Circumstances of the offending

The applicant and the victim met through a mutual friend on Facebook in early 2012 and messaged each other about the applicant’s tattoos. They were in contact for approximately three…

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 Vida (a pseudonym) v The Queen

Details

AGLC: Vida (a pseudonym) v The Queen [2021] VSCA 357
Case: [2021] VSCA 357
Decision Date: 17 December 2021

CaseChat Overview and Summary

The appellant, identified as Vida, appealed against the sentence imposed by the County Court of Victoria. The sentence was imposed following Vida’s convictions for false imprisonment, intentionally causing injury and indecent assault. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria, which was comprised of Redlich JA, The Honourable Chief Justice Doyle and The Honourable Justice Byrne. The central issue for the court was whether the total effective sentence of 2 years and 7 months’ imprisonment, with a 3 year community correction order, was manifestly excessive.

The court found that the sentence was not manifestly excessive. In making this finding, the court noted that the offences were serious and had a significant impact on the victim. The court also considered the principles of totality and proportionality in sentencing. It concluded that the sentence was appropriate given the seriousness of the offences and the need for general deterrence. The court further noted that the sentence reflected the cumulative impact of the offences and the need to protect the community.

In dismissing the appeal, the court held that the sentence was not manifestly excessive and the appeal was refused. The court found that the sentence imposed was proportionate to the seriousness of the offences and did not result in a manifestly excessive punishment. The court also noted that the sentence took into account the need for general deterrence and the protection of the community. The appeal was therefore dismissed, and the original sentence was upheld.

No specific orders were made in relation to the appeal outcome, as the appeal was dismissed.

Orders