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Sentence for Charge of Sexual Assault Appealed by Applicant

Tobin (a pseudonym) v The Queen [2021] VSCA 180 (23 June 2021)

The applicant was charged with sexual assault of a child under 16 and sexual penetration of a child under 12.  The applicant filed a leave to appeal against sentence alleging that the principles in Verdins applied.  The Court, in adjudicating the case, tackled the applicant's moderate personality disorder and whether the sentence was excessive. 

Facts:

The applicant pleaded guilty to one charge of sexual assault of a child under the age of 16 years, and to one charge of sexual penetration of a child under the age of 12 years.  He was sentenced, on 18 October 2019, to a total effective sentence of nine years’ imprisonment with a non-parole period of five years and six months.  The applicant seeks leave to appeal against sentence alleging that the judge erred in concluding that the Verdins principles did not apply to the applicant, misapplying the decision in DPP v O’Neill [2015] VSC 25  which was now overruled by Daylia Brown v The Queen [2020] VSCA 212

The applicant has also made application for an extension of time within which to seek leave to appeal against sentence.  On 7 November, counsel acting for the applicant gave advice in writing that the sentence should be appealed, and counsel on the same date emailed Mr Paull to inquire whether the reasons had been received from the judge.  There was then a considerable delay by Mr Paull in initiating the appeal. 

Issues:

Whether judge erred in concluding that principles in Verdins did not apply.

Whether sentence manifestly excessive.

Applicable law:

Criminal Procedure Act 2009  ss 275 and 279 - prescribes the time to apply for leave to appeal. 

R v Verdins [2007] VSCA 102(2007) 16 VR 269 - provides that psychological disorder was a mitigating factor.

O’Neill v The Queen (2015) 47 VR 369 - provides that ordinarily, personality disorders do not qualify for the application of Verdins principles.

Analysis:

The central consideration that apply to an application for an extension of time is whether it is in the interests of justice that the application for leave to appeal be heard, notwithstanding that it has been brought outside the prescribed time.  In the case, the delay in initiating the appeal cannot be attributed to the applicant since it was Mr Paull who was tasked to do so. 

Dr Dion Gee, a forensic psychologist, noted that the applicant’s formative years had been affected by a significant degree of social and emotional disruption and disadvantage, and his transition into early adulthood was lacking adaptive and pro-social experiences.  Dr Gee considered that, taking into account the applicant’s age and impaired mental functioning, imprisonment would not weigh more heavily on him than on a person in normal mental health. While youth should be considered in the gravity of the offence, youth and rehabilitation must yield to the sentencing purposes of general deterrence, denunciation and protection of the community.

Conclusion:

The Court concluded that the leave should not be granted because the grounds of appeal relied on by the applicant was not sufficiently argued.  As to the extension of time, since the delay is not his fault, the Court ordered that the applicant be granted an extension of time within which to bring the application for leave to appeal against sentence.

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