Andrews v The Queen

[2011] VSCA 191

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0003

STANLEY FRANCIS ANDREWS

Appellant

v

THE QUEEN

Respondent

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JUDGES	MAXWELL ACJ and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 June 2011
DATE OF JUDGMENT	9 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 191
JUDGMENT APPEALED FROM	R v Andrews (Unreported, County Court of Victoria, Judge Cohen, 22 December 2009)

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CRIMINAL LAW – Appeal – Sentencing – Sexual offences committed against young boys – Rape, gross indecency, indecent assault – Three victims – Total effective sentence of 6 years and 6 months’ imprisonment – Non-parole period 3 years and 6 months –Very serious offending – Gross delay in prosecution – Unfairness – Rehabilitation – Sentencing reasons careful and conscientious – Exceptionally low cumulation – Low non-parole period – Sentences not manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL ACJ:

1. Notwithstanding the careful and measured submissions made by Ms Spowart, both in writing and orally, I am not persuaded that this sentence was manifestly excessive.  Accordingly, I would dismiss the appeal.  My reasons are as follows.

1. The appellant pleaded guilty to 12 counts of sexual offending committed between October 1979 and February 1987 against three different boys, each of whom was under the age of 16 at the time.  He was sentenced as set out in the following table helpfully prepared by counsel for the appellant:

Ct	Victim	Age	Offence	Date	Max Pen	Sentence	Cumln
1	T	9–10	Gross indecency	1979–80	3y	6m	-
2	T	9–10	Indecent assault	1979–80	5y	8m	-
3	J	13–16	Indecent assault	1981	5y	3m	3m
4	J	13–16	Rape (oral)	1981	10y	4y	3m
5	J	13–16	Rape (anal)	1981	10y	5y	Base
6	J	13–16	Rape (oral)	1981	10y	4y	-
7	J	13–16	Gross indecency	1981–83	3y	2y	-
8	B	14–16	Indecent assault	1985	5y	3m	-
9	B	14–16	Gross indecency	1985	3y	18m	-
10	B	14–16	Rape (anal)	1986–87	10y	5y	12m
11	B	14–16	Indecent assault	1986–87	5y	2y	-
12	B	14–16	Gross indecency	1986–87	3y	22m	-
TES: 6y 6m   NPP: 3y 6m

1. He now appeals against the sentence on the sole ground that it is manifestly excessive.  This is said to be so given the following matters listed in the full statement of grounds of appeal:

·the long delay in the prosecution of this matter;

·the appellant’s rehabilitation in the period of the delay

·the appellant’s age;

·the appellant’s ill health and limited life expectancy;

·the fact that the appellant had served a sentence of imprisonment of 3 years and 10 months for similar offences in the period of the delay;

·the appellant’s plea of guilty;

·the appellant’s admissions to police;

·the fact that imprisonment would be burdensome for the appellant due to his isolation from his social support network interstate; and

·the fact that the…