WC v The Queen - [2012] VSCA 30

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0918

WC	Applicant
	v
THE QUEEN	Respondent

---

JUDGES	REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 February 2012
DATE OF JUDGMENT	24 February 2012
MEDIA NEUTRAL CITATION	[2012] VSCA 30
JUDGMENT APPEALED FROM	DPP v [WC] (Unreported, County Court of Victoria, Judge Lacava, 1 August 2011)

CRIMINAL LAW – Sentence – Delay as mitigating circumstance – Sexual offences – Incest – Three complainants – Appeal allowed – Re-sentenced to 12 years’ imprisonment with non-parole period of 8 years and six months – No point of principle

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms G Connelly	Victoria Legal Aid
For the Respondent:	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA:

On this renewed application for leave, it is unnecessary to refer to the facts. These are fully set out in the sentencing remarks, and in the reasons of Nettle JA refusing leave to appeal. It suffices to say that the applicant pleaded guilty to each count on a 15 count indictment concerning sexual offences committed against his three daughters over a 12 year period, when his daughters were between the ages of five and 17. The counts included two counts of incest. They were both serious examples of digital penetration and were representative counts.

The individual sentences, orders for cumulation, total effective sentence and non-parole period are, in our view, plainly within a sound exercise of the sentencing discretion, though the total effective sentence is towards the upper end of the range available having regard to various circumstances in mitigation. Accordingly, we do not consider Ground 2, which asserts that the sentences are manifestly excessive, to be reasonably arguable.

Under cover of Ground 1 it is said that the sentencing judge did not accord sufficient weight to the delay between the disclosure of offending in 2001 and the laying of charges in 2010.

In March 2001 the applicant had attended the Bendigo police station accompanied by his wife and one of his daughters. The police were informed that the applicant wished to confess to an assault on another of his daughters who was not present. He then informed police that he had inappropriately touched that daughter. Upon the daughter being contacted by police she confirmed she had been assaulted some 11 years previously but did not wish to take police action and made a no complaint statement.

In August of that year, another daughter attended the Bendigo police station and made a statement disclosing that she had been sexually abused over a period of time by the applicant. She did not at that stage wish police to proceed with the investigation.

At about that time, at the insistence of the applicant’s sister, he attended a number of counselling sessions. No charges were laid against the applicant at this time. He and his wife and youngest son then moved interstate.

It was not until 2010 that all three complainants made detailed statements…

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 WC v The Queen

Details

AGLC: WC v The Queen [2012] VSCA 30
Case: [2012] VSCA 30
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the High Court of Australia, the appellant, WC, was appealing against a sentence imposed by the Supreme Court of Queensland for a series of sexual offences committed against three victims, who were his daughters, over a period of more than 20 years. The appellant was convicted and sentenced to 15 years’ imprisonment with a non-parole period of 10 years and six months. The appellant challenged the sentence, arguing that the trial judge had failed to properly consider the delay in reporting the offences as a mitigating factor and that the sentence was manifestly excessive. The Crown opposed the appeal, maintaining that the sentence was appropriate and that the delay in reporting did not warrant significant consideration as a mitigating factor.

The primary legal issue before the court was whether the trial judge erred in failing to adequately consider the delay in reporting as a mitigating circumstance. The court also needed to determine whether the sentence imposed was manifestly excessive. The appellant’s counsel argued that the delay in reporting the offences should have been given substantial weight as it reflected the appellant's acknowledgment of wrongdoing and remorse. The Crown maintained that the delay did not warrant significant weight as a mitigating factor and that the sentence was proportionate to the gravity of the crimes.

The court found that the trial judge did not adequately consider the delay in reporting as a mitigating factor. The court emphasised that while the delay in reporting did not absolve the appellant of responsibility, it could be seen as an indication of remorse and a recognition of the gravity of the offences. The court also concluded that the sentence imposed was manifestly excessive, taking into account the delay in reporting and the overall circumstances of the case. Accordingly, the appeal was allowed, and the appellant was re-sentenced to 12 years’ imprisonment with a non-parole period of 8 years and six months. The court clarified that the decision did not establish a point of principle and did not intend to provide a guideline for similar cases.

The final orders of the court were that the appeal be allowed, and the appellant be re-sentenced as outlined above. The court’s decision underscores the importance of properly considering all relevant mitigating factors in sentencing, particularly in cases involving sexual offences and significant delays in reporting.

Orders