Attorney-General v B - [2002] TASSC 63

[2002] TASSC 63

CITATION: Attorney-General v B [2002] TASSC 63

PARTIES:  HER MAJESTY'S ATTORNEY-GENERAL
  v
  B

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 32/2002
DELIVERED ON:  11 September 2002
DELIVERED AT:  Hobart
HEARING DATES:  27 August 2002
JUDGMENT OF:  Underwood, Slicer and Blow JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Miscellaneous matters - Other sex offenders - Maintaining sexual relationships with children - Rapes of young children - Psychological impact - Whether three years' imprisonment manifestly inadequate.

Aust Dig Criminal Law [901]

REPRESENTATION:

Counsel:
           Appellant:  D G Coates
           Respondent:  In Person
Solicitors:
           Appellant:  Director of Public Prosecutions
           Respondent:  In Person

Judgment Number: [2002] TASSC 63
Number of Paragraphs: 25

Serial No 63/2002
File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
BLOW J
11 September 2002

Orders of the Court

Appeal allowed.
Sentence quashed.
Sentenced to imprisonment for 5 years and six months with effect from 7 January 2002.

Serial No 63/2002
File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
11 September 2002

I have read the reasons for judgment of Blow J. I agree with them.
File No CCA 32/2002

HER MAJESTY'S ATTORNEY-GENERAL v B

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

SLICER J
11 September 2002

The Attorney seeks review of a sentence of three years' imprisonment imposed on a 64 year old man convicted of two counts of maintaining a sexual relationship with his granddaughters aged 4 and 6 respectively over a period of 18 months.

The sole ground of appeal is that:

"The sentence was manifestly inadequate having regard to all the circumstances of the case."

The sexual predation on K commenced when she was five years old and continued for an eighteen month period. The misconduct alleged comprised numerous acts of rubbing, kissing and licking of the vagina and three acts of rape which occurred in the home, outdoors, and in a vehicle driven by the offender. The acts were opportunistic, but regular. On at least three occasions the penis was placed inside the vaginal lips, giving rise to the commission of rape. On other occasions, sexual contact resulted in the commission of the crimes of aggravated sexual assault.

Misconduct involving the second granddaughter commenced when she was 4 and continued over an eight month period on regular occasions. All of those events occurred within the family home. On one of the occasions, an act of rape was committed involving the placing of the penis between the vaginal lips.

Additional to the usual matters of aggravation, age, position of trust, events occurring within the home and the like, was the fact that despite discovery of the conduct and the offender's promise to cease, further sexual assaults occurred on at least two subsequent occasions.

There were cogent mitigating matters, including the character of the offender, his ready acknowledgement of…

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 Attorney-General v B

Details

AGLC: Attorney-General v B [2002] TASSC 63
Case: [2002] TASSC 63
Decision Date: 11 September 2002

CaseChat Overview and Summary

In this case, the Attorney-General appeals against the sentence imposed on the respondent, B, who was convicted of maintaining sexual relationships with his two young granddaughters. The trial judge sentenced B to three years' imprisonment, a decision which the Attorney-General contests on the ground that it was manifestly inadequate. The Court of Criminal Appeal heard the appeal and delivered its decision on 11 September 2002.

The legal issues before the Court of Criminal Appeal were whether the sentence imposed by the trial judge was manifestly inadequate and whether it appropriately reflected the gravity of the crimes committed by B. The appeal hinged on the nature and impact of B's sexual predation on the two young children, the presence of aggravating and mitigating factors, and the appropriate penalty for such serious crimes.

The Court of Criminal Appeal found that the sentence of three years' imprisonment was manifestly inadequate. The crimes involved four acts of rape on two very young children, which had severe psychological impacts on the victims. The Court considered that the trial judge's sentence did not adequately reflect the gravity of the crimes, particularly in light of the young age of the victims and the frequency and duration of the abuse. The Court took into account the need for caution in Crown appeals but emphasised its duty to correct manifest inadequacy in sentencing or inconsistency in sentencing standards. The Court found this to be a case where the sentence imposed by the trial judge was of such gravity that it was essential to the administration of justice to correct the error.

The Court of Criminal Appeal allowed the appeal, quashed the original sentence, and re-sentenced B to imprisonment for five years and six months, with effect from 7 January 2002. The Court recognised the mitigating factors present in the case, such as B's early guilty plea, remorse, and efforts to compensate the victims, but ultimately concluded that these factors did not justify the leniency of the original sentence. The Court imposed a sentence that was somewhat less than what it considered appropriate at first instance, in recognition of the double jeopardy principle in Crown appeals.

Orders