Waldon v The Queen - [2016] VSCA 260

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0155

CAMERON WALDON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2016
DATE OF JUDGMENT:	3 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 260
JUDGMENT APPEALED FROM:	[2016] VCC 1069 (Judge Sexton)

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CRIMINAL LAW – Appeal – Sentence – Grooming by youth worker – Crimes Act 1958 s 49B(2) – Indecent assault and possession of child pornography – Victim 14 year old with intellectual disabilities – Combined sentence of eight months’ imprisonment with two year Community Correction Order including treatment and unpaid community work – Whether manifestly excessive – Whether judge erred in treating indecent assault and child pornography as conduct also constituting grooming – Grooming charge involved persistence and cruelty – Objective gravity of grooming – Breach of trust and responsibility for child in applicant’s care – Sentence not manifestly excessive – Leave refused.

CRIMINAL LAW – Sentencing – Whether judge erred in finding applicant’s prospects of rehabilitation only ‘reasonable’ – Lack of insight into offending – Psychologist considered ongoing treatment necessary – Finding that prospects ‘reasonable’ open to sentencing judge.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	D C A Lawyers
For the Crown	Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

KYROU JA:

On 11 July 2016 the applicant (now aged 33), pleaded guilty to grooming for sexual conduct with a child under the age of 16 years, indecent act with a child under the age of 16 and possession of child pornography. Following a plea on 11 July 2016, the applicant was sentenced on 14 July 2016 as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Grooming for sexual conduct with child under the age of 16 years [Crimes Act 1958, s 49B(2)]	10 years [Crimes Act 1958, s 49B(2)]	8 months	N/A
2	Indecent act with child under the age of 16 [Crimes Act 1958, s 47(1)] (Representative Charge)	10 years [Crimes Act 1958, s 47(1)]	Community Correction Order	N/A
3	Possession of child pornography [Crimes Act 1958, s 70(1)]	10 years [Crimes Act 1958, s 70(1)]	Community Correction Order	N/A
Total Effective Sentence:		8 months’ imprisonment, followed by a Community Correction Order for 2 years, including treatment, participation in a sex offender behaviour program and 200 hours of unpaid community work.
Non-Parole Period:		N/A
Pre-sentence Detention Declared:		Nil
6AAA Statement:		3 years’ imprisonment, with a non-parole period of 12 months.
Other orders: Pursuant to s 464ZF of the Crimes Act 1958, the taking of an intimate sample. Pursuant to s 34 of the Sex Offenders Registration Act 2004, placed on the sex offender register for life. Forfeiture order.

The applicant seeks leave to appeal against his sentence on the grounds that he was doubly punished for the conduct the subject of charges 2 and 3, his prospects of rehabilitation…

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: [2016] VSCA 260
Decision Date: 3 November 2016

CaseChat Overview and Summary

In the case of Waldon v The Queen, the applicant, a youth worker, appealed against his sentence following his conviction for indecent assault of a 14-year-old girl with intellectual disabilities and possession of child pornography. The case was heard in the court of appeal. The applicant was sentenced to a combined term of eight months’ imprisonment with a two-year community correction order, which included treatment and unpaid community work. The central legal issue was whether the sentence imposed was manifestly excessive, and if the judge erred in treating the indecent assault and child pornography offences as conduct also constituting grooming. The court had to determine if the judge's assessment of the applicant's prospects for rehabilitation was reasonable.

The court examined the nature of the grooming charge, which involved persistence and cruelty, and considered the objective gravity of the grooming in light of the breach of trust and the responsibility the applicant had for the child in his care. The court found that the sentence was not manifestly excessive, as it took into account the seriousness of the offences, the need for denunciation, and the protection of the community. The court also held that the judge did not err in treating the indecent assault and child pornography as conduct that constituted grooming, given the persistent and cruel nature of the offences. Regarding the sentencing judge's assessment of the applicant's prospects of rehabilitation, the court found that the judge's conclusion that the prospects were reasonable was open to him, despite the psychologist's view that ongoing treatment was necessary. The applicant's lack of insight into his offending was considered in the overall assessment.

The court of appeal dismissed the applicant's appeal and refused leave to appeal to a higher court. The sentence and the judge's assessment of the prospects for rehabilitation were upheld. The final orders confirmed the applicant's sentence of eight months' imprisonment with a two-year community correction order, including treatment and unpaid community work.

Orders