SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0090
| PATRICIA YORK (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2014 |
| DATE OF JUDGMENT: | 12 September 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 224 |
| JUDGMENT APPEALED FROM: | R v [York] (Unreported, County Court of Victoria, Judge Cotterell, 16 April 2014) |
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one charge of common assault and sentenced to five months’ imprisonment wholly suspended for 12 months –Whether the judge erred by not having regard to the penalty for the summary offence – Whether the judge took into account inadmissible material in a Victim Impact Statement – Whether the sentence imposed was manifestly excessive – Appeal allowed – Appellant resentenced to a fine without conviction.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr M Fitzgerald | Dr Martine Marich |
| For the Crown | Mr R A Elston QC | Mr C Hyland, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction
Pursuant to leave granted by a judge of this Court, the appellant has appealed against a sentence of five months’ imprisonment — which was wholly suspended for 12 months — imposed upon her by a judge of the County Court on 16 April 2014, following her plea of guilty to common assault.
For the reasons that follow, we would allow the appeal and re-sentence the appellant.
Grounds of appeal
The three ground of appeal are:
1.That the learned sentencing judge erred in failing to have regard to the maximum penalty for the offence of assault, as provided for by section 23 of the Summary Offences Act 1966;
2.That the learned sentencing judge erred in placing reliance on inadmissible material in the Victim Impact Statement, in a manner that was unfairly prejudicial to the appellant; and
3.That the sentence is manifestly excessive, having regard to the appellant’s plea of guilty, lack of prior convictions, the delay in charging the offence, age, personal circumstances, and the consequences of the sentence and conviction for the appellant.
The offending
In her reasons for sentence, the judge described the offending as follows:
In 2002, when the complainant … was approximately 14, she made an arrangement with a boy … to go to the movies with him. The complainant believed it to be a secret arrangement and she told you, as I understand it, that she was going with a girlfriend. The pair went to the movies and were walking home, and when they were near your house your husband … appeared in his vehicle and confronted your daughter and the boy she was with. The boy ran away and the complainant was then grabbed and driven home.
When they arrived at the house you began yelling at her…
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- AGLC
- York (a pseudonym) v The Queen [2014] VSCA 224
- Case
- [2014] VSCA 224
- Decision Date
CaseChat Overview and Summary
The High Court considered whether the sentencing judge had failed to take into account the penalty range for a summary offence, which is generally less severe than an indictable offence. The court noted that the penalty for a summary offence could inform the appropriate range of penalties for an indictable offence. Furthermore, the court examined if the judge had improperly considered material in the Victim Impact Statement that was not admissible as evidence. The court held that the judge had indeed erred in this regard, as the impact statement included matters that were not admissible in evidence, such as the personal views of the victim's family about the appellant. Finally, the court assessed whether the sentence imposed was manifestly excessive, taking into account the nature of the offence and the principles of sentencing.
Upon finding that the sentencing judge had erred and that the sentence was manifestly excessive, the High Court allowed the appeal and remitted the case to the lower court for resentencing. The appellant was resentenced to a fine without conviction, reflecting the court's view that the original sentence was disproportionately severe given the nature of the offence and the proper penalty range for a summary offence. The court's decision underscores the importance of correctly applying sentencing principles and avoiding the consideration of inadmissible material when determining an appropriate penalty.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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