Whitecroft (a pseudonym) v The King - [2025] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0114

RICHARD WHITECROFT (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identity of the victim of the sexual assault offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	Niall CJ and Kidd JA
WHERE HELD:	Melbourne
DATE OF HEARING:	05 May 2025
DATE OF JUDGMENT:	26 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 143
JUDGMENT APPEALED FROM:	[2024] VCC 775 (Judge Gaynor)

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CRIMINAL LAW — Application for leave to appeal sentence — Indecent act with a child under 16 — Incest and attempted incest — Whether error in application of principles for sentencing person who was a child at time of offending — Whether error in sentencing judge’s assessment of remorse component of guilty plea — Whether undue weight given to victim impact statement — Whether sentences manifestly excessive — No error found — Leave to appeal refused.

Sentencing Act 1991, ss 5(2), 8K.

R v PJP (2007) 17 VR 300, discussed.

Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354; Gray (a pseudonym) v The Queen [2018] VSCA 163; Clarkson v The Queen (2011) 32 VR 361, applied.

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Counsel
Applicant:		Mr RF Edney
Respondent:		Mr R Gibson KC
Solicitors
Applicant:	Mr A Halphen, Stary Norton Halphen
Respondent:	Ms A Hogan, Office of Public Prosecutions

NIALL CJ
KIDD JA:

On 17 May 2024, the applicant pleaded guilty to two counts of indecent act with a child under 16, two counts of attempted incest and four counts of incest (relating to his younger sister). He was sentenced on 30 May 2024 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Indecent act with child under 16[2]	10 years	8 months	2 months
2	Indecent act with child under 16	10 years	8 months	2 months
3	Attempted incest — sibling[3]	2 years	8 months	2 months
4	Incest — sibling[4]	5 years	12 months	3 months
5	Incest — sibling	5 years	11 months	2 months
6	Incest — sibling	5 years	14 months	Base
7	Incest — sibling	5 years	12 months	3 months
8	Attempted incest — sibling	2 years	8 months	2 months
Total Effective Sentence:		2 years 6 months’ imprisonment
Non-Parole Period:		18 months
Pre-sentence Detention Declared:		N/A
Section 6AAA Statement:		Total Effective Sentence: 4 years 6 months Non‑Parole Period: 2 years
Other Relevant Orders: Pursuant to s 6F of the Sentencing Act 1991, the offender is sentenced as a serious sexual offender in respect of charges 3, 4, 5, 6, 7 and 8.

[2]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.

[3]Contrary to ss 321M, 44(4) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991.

[4]Contrary to s 44(4) of the Crimes Act 1958,…

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 Whitecroft (a pseudonym) v The King

Details

AGLC: Whitecroft (a pseudonym) v The King [2025] VSCA 143
Case: [2025] VSCA 143
Decision Date: 26 June 2025

CaseChat Overview and Summary

The defendant, Whitecroft, sought leave to appeal against his sentence for committing indecent acts with a child under the age of 16, including instances of incest and attempted incest. The case was heard in the Victorian Court of Appeal. The appeal focused on the sentence imposed by the County Court, arguing that the sentencing judge had erred in applying sentencing principles due to Whitecroft being a child at the time of the offences, misassessed the level of remorse demonstrated in his guilty plea, unduly weighed the victim impact statement, and that the sentences were manifestly excessive.

The court examined whether the sentencing judge erred in applying the principles for sentencing someone who was a child at the time of offending. It also considered whether the assessment of remorse and the victim impact statement was correct and whether the sentences were excessive. The court reviewed the relevant legal precedents, including R v PJP, Barbaro v The Queen, Zirilli v The Queen, Gray v The Queen, and Clarkson v The Queen, to determine the appropriate application of sentencing principles in this case.

After reviewing the evidence and applicable law, the court found no error in the sentencing judge's application of the principles for sentencing a person who was a child at the time of the offending. The court also found that the sentencing judge correctly assessed the level of remorse and the weight given to the victim impact statement. The court further determined that the sentences were not manifestly excessive, taking into account the nature and circumstances of the offences. Consequently, the court refused Whitecroft leave to appeal against his sentence.

The court's final orders were that Whitecroft's application for leave to appeal against his sentence was refused.

Orders