Weir (a pseudonym) v The King - [2023] VSCA 113

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0111

RUSSELL WEIR (A PSEUDONYM)[1]	Appellant
v
THE KING	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as to prevent the identification of victims of sex offending.

---

JUDGES:	BEACH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	15 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 113
JUDGMENT APPEALED FROM:	[2022] VCC 1084 (Judge Davis)

---

CRIMINAL LAW – Appeal – Sentence – Incest, sexual assault and sexual penetration of a stepchild – TES of 17 years and 1 month, with NPP of 13 years – Manifest excess – Whether sentences manifestly excessive – Very serious offending – Offending committed while holding victim down – Offending resulting in impregnation of 11 year old child – Sentences imposed strongly suggestive that plea of guilty made during pandemic given appropriate consideration by sentencing judge – Sentences not manifestly excessive – Appeal dismissed.

---

Counsel
Appellant:		Mr J Connolly
Respondent:		Ms R Harper
Solicitors
Appellant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA:

On 26 May 2022, the appellant pleaded guilty in the County Court to one charge of incest[2] (charge 1), one charge of sexual assault[3] (charge 2), and four charges of sexual penetration of a stepchild.[4] On 19 July 2022, he was sentenced as follows:
[2]Contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.
[3]Contrary to s 40 of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4]Contrary to s 50D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

Charge Offence Maximum Sentence Cumulation

1 Incest 25 years 10 years 18 months

2 Sexual assault 10 years 6 months 1 month

3 Sexual penetration of a stepchild 25 years 10 years 18 months

4 Sexual penetration of a stepchild 25 years 11 years Base

5 Sexual penetration of a stepchild 25 years 10 years 18 months

6 Sexual penetration of a stepchild 25 years 10 years 18 months

Total Effective Sentence: 17 years and 1 month

Non-Parole Period: 13 years

Section 6AAA Statement: 21 years, with a non-parole period of 17 years

Other relevant orders: Sentenced as a serious offender on charges 36 and registered on the Sex Offenders Registry with the reporting period for life.

Pursuant to leave granted by this Court on 14 November 2022,[5] the appellant appeals against his sentence on the following ground:
1.The sentences on charges 3, 4, 5 and 6, the orders for cumulation, and therefore the total effective sentence and the non-parole period, are manifestly excessive.
[5][Weir (a pseudonym)] v The King (unreported, Court of Appeal, Priest JA, 14 November 2022).

Circumstances of the offending

The victim of charge 1 was the appellant’s biological daughter. Charge…

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 Weir (a pseudonym) v The King

Details

AGLC: Weir (a pseudonym) v The King [2023] VSCA 113
Case: [2023] VSCA 113
Decision Date: 15 May 2023

CaseChat Overview and Summary

In the case of Weir v The King, the appellant, Weir, appealed against his sentences for incest, sexual assault, and sexual penetration of his stepchild, an 11-year-old child. The case was heard and dismissed by the High Court of Australia. The appellant was sentenced to a total effective sentence (TES) of 17 years and 1 month, with a non-parole period (NPP) of 13 years. The appellant argued that his sentences were manifestly excessive, while the Crown contended that they were appropriate given the severity of the crimes committed.

The central legal issue before the court was whether the sentences imposed were manifestly excessive. The court considered the very serious nature of the offences, which involved the appellant holding down his stepchild during the assaults and resulting in her impregnation. Additionally, the court took into account the appellant's guilty plea during the COVID-19 pandemic, suggesting that this factor was appropriately considered by the sentencing judge. The court also weighed the principles of deterrence, rehabilitation, and denunciation in determining the appropriate sentence.

The court found that the sentences imposed were not manifestly excessive. The judge had carefully considered the circumstances of the case and had given appropriate weight to the factors in aggravation and mitigation. The court acknowledged the heinous nature of the crimes, as well as the vulnerability of the victim. The sentences imposed reflected the gravity of the offences and served the purposes of punishment, deterrence, and denunciation. Consequently, the appeal was dismissed, and the original sentences were upheld.

No additional orders were made by the court.

Orders