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…
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- AGLC
- Warren v The Queen [2013] VSCA 372
- Case
- [2013] VSCA 372
- Decision Date
CaseChat Overview and Summary
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.
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