CRIMINAL LAW — Appeal — Sentence — Sexual penetration and attempted penetration of a child under 16 — Total effective sentence of 12 years’ imprisonment with non-parole period of 8 years — Whether manifestly excessive — Whether insufficient weight given to guilty plea, totality, age and previous good character — Leave to appeal granted — Appeal allowed — Resentenced to 9 years’ imprisonment with non-parole period of 6 years — DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 and DPP v Zhuang (2015) 250 A Crim R 282 considered.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr N Goodfellow
Tyler Tipping & Woods
For the Respondent
Mr JCJ McWilliams
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA KYROU JA:
Introduction
On 20 September 2019, the applicant pleaded guilty before a judge in the County Court to sexual penetration of a child under 16[2] (four charges — charges 1, 3, 4 and 5) and attempted sexual penetration of a child under 16[3] (one charge — charge 2).
[2]Crimes Act 1958, s 45(1). By virtue of s 45(2)(a), the maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, ss 45(1) and 321M. By virtue of s 321P(1)(a), the maximum penalty is 20 years’ imprisonment.
Following a plea, on 25 September 2019 the judge sentenced the applicant to a total effective sentence of 12 years’ imprisonment, with a non-parole period of eight years, in accordance with the following table:
Charge
Offence
Sentence
Cumulation
1
Sexual penetration of a child under 16 [digital-vaginal penetration]
7 years
Base
2
Attempted sexual penetration of a child under 16
5 years
1 year
3
Sexual penetration of a child under 16 [digital-vaginal penetration][4]
5 years
Nil
4
Sexual penetration of a child under 16 [lingual-vaginal penetration]
5 years
2 years
5
Sexual penetration of a child under 16 [penile-oral penetration]
5 years
2 years
Total effective sentence:
12 years
Non-parole period:
8 years
Pre-sentence detention:
5 days
Other orders:
Sex offender registration (life); forensic sample order
[4]Pursuant to Part 2A (ss 6A to 6F) of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender on charges 3, 4 and 5.
The applicant seeks leave to appeal against his sentence on a single ground formulated as follows:
The individual sentences, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars
(a) The learned sentencing judge gave manifestly insufficient weight to the applicant’s pleas of guilty and the principle of totality.
(b) The sentences imposed are more severe than…
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.
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Details
AGLC
Victor Williams (a pseudonym)[1] v The Queen [2021] VSCA 35
Case
[2021] VSCA 35
Decision Date
CaseChat Overview and Summary
Williams, a pseudonym used to protect the identity of the appellant, sought to appeal against his sentence imposed by the lower court for offences of sexual penetration and attempted penetration of a child under the age of 16. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the total effective sentence of 12 years’ imprisonment, with a non-parole period of 8 years, was manifestly excessive. The appellant argued that insufficient weight had been given to his guilty plea, the principle of totality, his age at the time of the offences, and his previous good character.
The court considered the principles established in DPP v Dalgliesh and DPP v Zhuang, which highlight the importance of ensuring that sentences are proportionate and reflect the totality of the circumstances of the case. The appellant's legal team submitted that the sentence imposed was manifestly excessive and did not adequately account for the mitigating factors. The court agreed, finding that the sentence was indeed disproportionate to the gravity of the offences and did not appropriately reflect the mitigating factors. Consequently, the appeal was allowed, and the sentence was reduced to 9 years’ imprisonment with a non-parole period of 6 years.
The court's reasoning was grounded in the need for proportionality in sentencing and the requirement to consider all relevant mitigating factors. The High Court determined that the original sentence did not sufficiently weigh the mitigating factors, resulting in a manifestly excessive penalty. The court ordered a resentencing to 9 years’ imprisonment with a non-parole period of 6 years, reflecting a more balanced consideration of the circumstances of the case. This decision underscores the importance of proportionality and the proper weighing of mitigating factors in criminal sentencing.