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WCB v The Queen

WCB v The Queen

Case [2010] VSCA 230 10 September 2010

Criminal Liability

Sentencing

Community Expectation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

WCB	S APCR 2007 0942
WCB	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and REDLICH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2010
DATE OF JUDGMENT:	10 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 230
JUDGMENT APPEALED FROM:	R v WCB (Unreported, County Court of Victoria, Judge Punshon, 14 December 2007)

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CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 – Community expectation as to length of sentence – Inadequate reporting of sentencing in commonly occurring crimes including sexual offences against children – Misconceived public perception that sentences too low – Danger of selective publicity inviting reasoning from a particular sentence to the general – Authority of principle of general deterrence undermined – Need for public awareness about sentences – Whether risk that sentencing judge fixed more severe sentence to accord with community expectation – Expectations of ‘informed’ and objective members of the public a proper sentencing consideration – Sentence to vindicate and reaffirm society’s values – Prosecutor’s obligation to make submissions as to range – R v MacNeil Brown (2008) 20 VR 677 applied – Whether offending conduct warranted placement of offence at upper end of the most serious category of the offence – Sentence manifestly excessive – Appellant re-sentenced

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC	Greg Duncan
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ

REDLICH JA:

The appellant pleaded guilty in the County Court to one count of sexual penetration of a child under 16 and two counts of committing an indecent act with or in the presence of a child. The offences were committed against two victims, a ten year old girl whose mother had a close relationship to the appellant and an eight year old girl who was her school friend. The sentencing judge sentenced the appellant as follows:

Count 1 Sexual penetration of a child under 16 7 years imprisonment

Count 2 Indecent act with a child under 16 2 years imprisonment

Count 3 Indecent act with a child under 16 2 ½ years imprisonment

The learned sentencing judge ordered that one year of count 2 and 15 months of count 3 be served cumulatively upon the sentence imposed on count 1 making a total effective sentence of nine years and three months’ imprisonment. A non-parole period of six years and six months’ imprisonment was fixed.

The appellant now appeals against the sentence imposed on the following grounds:

1The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
2The sentences imposed by the Judge fail to properly reflect his stated intention of regarding the applicant’s pleas of guilty as ‘requiring a real reduction in penalty’ (Sentence [16]).
3The learned sentencing judge erred in sentencing the appellant on the basis that ‘The community would expect you to be imprisoned for a lengthy period.’ (Sentence [12]).

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 WCB v The Queen

Details

AGLC: WCB v The Queen [2010] VSCA 230
Case: [2010] VSCA 230
Decision Date: 10 September 2010

CaseChat Overview and Summary

The matter of WCB v The Queen came before the court to address the issue of sentencing for the appellant's conviction of sexually penetrating a child under the age of sixteen. The court was tasked with ensuring that the sentence met the community's expectations and expectations of the public, while also considering the principle of general deterrence in sentencing. The appellant was originally sentenced, but this was challenged on the basis that the sentence did not align with community expectations and could potentially undermine the authority of the sentencing principles.

The legal issues that the court needed to resolve included whether the original sentencing judge had imposed a more severe sentence to conform to community expectations, and whether the prosecutor had adequately addressed the range of sentences. The court also needed to determine if the original sentence was manifestly excessive and if the offending conduct warranted placement of the offence at the upper end of the most serious category of the offence. The court considered the principle of general deterrence and the need for public awareness about sentences to avoid misconceived public perceptions that sentences for commonly occurring crimes, including sexual offences against children, are too low.

The court found that the original sentence was manifestly excessive and re-sentenced the appellant. The court acknowledged the risk that a sentencing judge might fix a more severe sentence to accord with community expectation. However, it held that the expectations of 'informed' and objective members of the public were a proper sentencing consideration. The court also emphasised the need for a sentence that would vindicate and reaffirm society's values, and the prosecutor's obligation to make submissions as to the range of sentences. The decision in R v MacNeil Brown (2008) 20 VR 677 was applied, where the court held that the offending conduct warranted placement of the offence at the upper end of the most serious category of the offence.

The court re-sentenced the appellant, ensuring that the sentence was appropriate and met the community's expectations, while also considering the principle of general deterrence. The court acknowledged the importance of public awareness about sentences to avoid misconceived public perceptions that sentences for commonly occurring crimes, including sexual offences against children, are too low. The court also emphasised the need for a sentence that would vindicate and reaffirm society's values.

Orders