York (a pseudonym) v The Queen - [2014] VSCA 224

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

---

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)

---

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.

---

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…

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 York (a pseudonym) v The Queen

Details

AGLC: York (a pseudonym) v The Queen [2014] VSCA 224
Case: [2014] VSCA 224
Decision Date: 12 September 2014

CaseChat Overview and Summary

York, the appellant, appealed against his sentence, following a guilty plea to one charge of common assault. The sentence imposed was five months' imprisonment, wholly suspended for 12 months. The appeal was heard in the High Court of Australia, which had appellate jurisdiction over the case. York contended that the sentencing judge failed to consider the penalty for a summary offence, improperly took into account inadmissible material from a Victim Impact Statement, and that the sentence was manifestly excessive. The central legal issues were whether the sentencing judge had erred in these respects and if the sentence imposed was manifestly disproportionate.

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