This appeal against sentence concerned whether misapprehending a typical aggravating feature was 1) material to the sentence imposed and 2), in the alternative, warranted a less severe sentence. The issues were framed as such because the respondent conceded that the sentencing judge did err in relation to the aggravating feature. This concession concerned ground 1(a), being the only ground upon which leave had previously been granted, which read as follows: “The learned sentencing judge erred in sentencing the appellant for charge 4, for the following reasons: (a) The finding that for charge 4 there was a failure to wear a condom for all but one instance of penile/vaginal penetration was not open to be found beyond a reasonable doubt”.
The Court stated that “the applicable principle, on appeal, is that the sentencing discretion is reopened, unless the Court of Appeal is satisfied that the error could not have materially affected the sentence imposed by the judge” citing Gillespie (a pseudonym) v The Queen [2018] VSCA 151 [53], amongst other authorities. The Court restated this same principle in different language, by saying “[a]s Chernov JA explained in R v Fox [2003] VSCA 138 [18], in effect, the question is whether, if the judge had known of the true situation, it is reasonable to suppose that a lower sentence would or might have been imposed on the appellant.” The Court then outlined the next step in analysis by stating “[i]f the appellate court is not satisfied that the sentencing error was incapable of materially affecting the sentence imposed by the sentencing judge, the Court must resentence the appellant, unless, in the independent exercise of its discretion, the Court is not satisfied that a different sentence should be imposed despite the error by the judge” citing s281 of the Criminal Procedure Act 2009; Gillespie (a pseudonym) v The Queen [2018] VSCA 151 [53]; and, Dimovski v The Queen [2022] VSCA 6 [27].
Naturally, counsel for the appellant submitted that the error by the sentencing judge was material to the sentence imposed on charge 4, and, accordingly, was material to the total effective sentence and the non-parole period. It should be noted that the appellant was sentenced to nine (9) years imprisonment for a charge against s50D(1) of the Crimes Act 1958 (Vic) on a rolled-up basis and that this was the base sentence.
Counsel for the respondent submitted that the error was not material because charge 4 was the most serious of all of the charges, the other charges also being rolled-up charges. The respondent further relied on this position in relation to the second step of analysis for this appeal, submitting that the Court should not impose any lesser sentence on charge 4.
In dismissing the appeal, the Court began by comparing the individual sentences imposed on charge 4 with that of charges 3 and 5. The Court conducted an analysis of the objective gravity of each charge, including the number and circumstances of the offending conduct rolled-up under each charge. The Court concluded “[t]hus, the failure of the appellant to use a condom, was one of four factors of aggravation taken into account by the judge, [sic] The other three factors were each particularly serious, [sic] In that context, and taking into account the graduated sentences imposed by the judge in respect of charges 3, 4 and 5, we are satisfied that the error, that was the subject of ground 1(a), could not have materially affected the sentence imposed by her Honour on charge 4.” The Court also said that even if “it were not possible to conclude that the error could not have materially affected the sentence imposed by the judge on charge 4, in the independent exercise of this Court’s discretion, we are not satisfied that in the circumstances of the case, any different sentence should be imposed.”
