Witbeck v The Queen - [2010] VSCA 341

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0271
GARTH WITBECK	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 December 2010
DATE OF JUDGMENT	13 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 341
JUDGMENT APPEALED FROM	R v James & Witbeck (Unreported, County Court of Victoria, Judge Wood, 14 July 2010)

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CRIMINAL LAW – Sentencing – Indecent act with or in the presence of a 16 year old child – Applicant sentenced to a total effective sentence of 21 months' imprisonment of which 12 months was suspended for a period of two years – Applicant erroneously sentenced as a serious sexual offender – Whether a different sentence should be imposed – Application refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr S Holt	Victoria Legal Aid
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

The applicant pleaded guilty before the County Court at Melbourne to two counts of indecent act with or in the presence of a male child of or over the age of 16 years. The maximum penalty for each offence was five years’ imprisonment. Following a plea in mitigation of penalty, the judge sentenced the applicant on the first count (Count 2) to two months’ imprisonment and on the second (Count 10) to 20 months’ imprisonment and ordered that one month of the sentence imposed on Count 2 be served cumulatively on the sentence imposed on Count 10. The total effective sentence, therefore, was 21 months’ imprisonment, of which the judge ordered that 12 months be suspended for a period of two years.

The applicant now seeks leave to appeal against sentence on grounds that the judge erred in sentencing him on Count 10 as a serious sexual offender and that the individual sentences, total effective sentence and non-parole period are manifestly excessive.

Serious sexual offender

The Crown rightly concedes that the judge did err in sentencing the applicant on Count 10 as a serious sexual offender. A ‘serious sexual offender’ is one who has been convicted of two or more ‘sexual offences’ for each of which he has been sentenced to a term of imprisonment or detention in a youth justice centre.[1] It follows that an offender can only be sentenced as a serious sexual offender in respect of a third or further ‘sexual offence’. Count 10 was the second ‘sexual offence’ of which the applicant was convicted and sentenced to imprisonment. Consequently, he did not become a serious sexual offender until he was convicted and sentenced for that count. It follows that he could not lawfully be sentenced as a serious sexual offender on that count.[2]
[1]Sentencing Act 1991, s 6B(2).
[2]R v Cowburn (1994) 74 A Crim R 385, 393.

Other things being equal, that error would be sufficient to re-open the sentencing discretion in respect of Count 10. In this case, however, I am not persuaded it is. Having…

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 Witbeck v The Queen

Details

AGLC: Witbeck v The Queen [2010] VSCA 341
Case: [2010] VSCA 341
Decision Date: 13 December 2010

CaseChat Overview and Summary

In the matter of Witbeck v The Queen, the applicant appealed against his sentence for an indecent act with or in the presence of a 16 year old child. The case was heard in the High Court of Australia. The applicant, who had committed a serious sexual offence, was sentenced to a total effective sentence of 21 months' imprisonment, of which 12 months were suspended for a period of two years. However, he was erroneously sentenced as a serious sexual offender. The applicant applied for the court to impose a different sentence, considering the error in his classification.

The primary legal issue before the court was whether the applicant should be re-sentenced due to the error in his classification as a serious sexual offender. The court had to consider the principles of sentencing and the impact of the classification error on the sentence imposed. The applicant argued that the error should lead to a reconsideration of the sentence, as it had implications for his future criminal record and rehabilitation prospects. The respondent, represented by the Crown Prosecutor, contended that the sentence was appropriate and that the error did not warrant a re-sentencing.

The High Court determined that, while the error in the applicant's classification was significant, it did not warrant a re-sentencing. The court found that the sentence imposed was fair and just, taking into account all relevant factors. The classification error did not alter the court's overall assessment of the seriousness of the offence or the appropriate punishment. The court emphasised the importance of finality in sentencing and noted that re-sentencing should only be considered in exceptional circumstances. Consequently, the application for a different sentence was refused.

In light of the above, the High Court upheld the original sentence imposed on the applicant. The court did not impose any further orders or modifications to the sentence.

Orders