The Court of Appeal (Justice Priest and Justice McLeish) today allowed an appeal against sentence by Zachary Underwood, who was convicted by a County Court jury of one charge of indecent assault and three charges of rape. Subsequently, the trial judge sentenced him to 6 months’ imprisonment on the charge of indecent assault, and 5 years’ imprisonment on each charge of rape. Orders for cumulation produced a total effective sentence of 8 years and 2 months’ imprisonment, upon which a non-parole period of 5 years and 8 months was fixed.

The appellant’s offending included one instance of lingual-vaginal penetration, and two instances of penile-vaginal penetration, without the consent of the female victim. In finding the sentence to be manifestly excessive, the Court of Appeal held that the cumulation ordered between the individual sentences on each charge was too great, in circumstances where each sexual act effectively occurred in the course of a single transaction. Further, the appellant, a non-citizen, had spent almost two years in immigration detention between his arrest and sentence. Fairness dictated that the overall sentence of imprisonment imposed take account of the circumstances of his detention.

The Court thus resentenced the appellant to 6 years and 6 months’ imprisonment, and fixed a non-parole period of 4 years and 3 months.

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NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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Author
Supreme Court of Victoria
Publisher
Supreme Court of Victoria
Date of Publication

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