Warren v The Queen - [2013] VSCA 372

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0092

GEOFFREY WARREN
	Appellant
V
THE QUEEN
	Respondent

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JUDGES	REDLICH, WEINBERG AND PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 October 2013
DATE OF JUDGMENT	17 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 372
JUDGMENT APPEALED FROM	DPP v Warren (Unreported, County Court of Victoria, Judge Douglas, 26 April 2013)

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CRIMINAL LAW – Appeal against sentence – Counts of indecent act with a child under the age of 16 – Crimes Act 1958 s 47(1) – Judge sentenced on incorrect factual basis – Whether offender showing child photographs of himself masturbating less serious than masturbating in child’s presence – Material error – Appeal allowed – Appellant resentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P J Smallwood	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

The appellant, now aged 59, pleaded guilty to six counts of committing an indecent act with a child under 16.[1] The offending involved a number of different victims, each of whom were step-grandchildren of the appellant, and took place over a period of several years when the appellant was between the ages of 50 and 55. The appellant was sentenced on 26 April 2013, as follows:
[1]Crimes Act 1958 (Vic) s 47(1).

Charge Offence Maximum penalty Sentence Cumulation

1

Indecent act with a child under 16

10 years

2 months

2

Indecent act with a child under 16 (rolled-up charge)

10 years

2 years 6 months

Base

3

Indecent act with a child under 16

10 years

1 year 6 months

6 months

4

Indecent act with a child under 16

10 years

1 year

2 months

5

Indecent act with a child under 16

10 years

5 months

6

Indecent act with a child under 16 (rolled-up charge)

10 years

1 year 4 months

10 months

Total effective sentence

4 years’ imprisonment

Non-parole period

2 years’ imprisonment

Sex Offender Registration Order

Life

Pre-Sentence Detention

60 days

6AAA Declaration

5 years 6 months, with a non-parole period of 3 years

Ancillary Orders

Forensic sample order and disposal order made

The appellant was granted leave to appeal against these sentences on the following two grounds.

(1)The learned sentencing judge erred by sentencing the appellant on an incorrect factual basis, in relation to charge 2.
(2)The total effective sentence and the non-parole period are manifestly excessive.

Circumstances of the offending

The appellant’s wife had two adult daughters from an earlier relationship, ‘DL’ and ‘KK’. DL has three children, two of whom were victims of the appellant’s offending: ‘DS’ (born 28 June 1996) and ‘DM’ (born December 2001). KK has four children three of whom were victims of the appellant’s offending: ‘KT’ (born 6 June 1997), ‘KH’ (born 3 November 2000) and ‘KD’ (born 21 April 2002).

While at the appellant and his wife’s house, the appellant showed DS photos of naked males and females on his computer in the bedroom. She…

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 Warren v The Queen

Details

AGLC: Warren v The Queen [2013] VSCA 372
Case: [2013] VSCA 372
Decision Date: 17 December 2013

CaseChat Overview and Summary

In Warren v The Queen, the appellant, Warren, appealed against his sentence for counts of committing an indecent act with a child under the age of sixteen, under section 47(1) of the Crimes Act 1958. The case was heard in the Court of Appeal, with the appellant challenging the severity of his sentence. The central issue for the court was whether the judge had erred in sentencing by assessing the appellant's actions as less serious than they actually were. Specifically, the court had to determine whether showing a child photographs of himself masturbating constituted a less serious offence than masturbating in the child's presence.

The court examined the sentencing remarks of the trial judge and concluded that there had been a material error in the assessment of the facts. The judge had sentenced Warren based on the incorrect premise that showing the child photographs was less serious than masturbating in the child’s presence. The Court of Appeal held that this constituted a material error, as the judge did not correctly identify the factual basis for the appellant's actions. The error was significant enough to warrant a reassessment of the sentence.

Given the material error in the assessment of the facts, the Court of Appeal allowed the appeal and remitted the case to the County Court for resentencing. The court emphasised that the trial judge's error in assessing the facts significantly affected the severity of the sentence, leading to the decision to allow the appeal and resentence the appellant. The court did not specify the new sentence but directed that it be reconsidered based on the correct facts.

Orders