Bavage v The Queen - [2012] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0644
S APCR 2009 0645
S APCR 2009 0646
S APCR 2009 0647

JEFFREY PETER BAVAGE	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	NEAVE and BONGIORNO JJA and BELL AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2012
DATE OF JUDGMENT:	29 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 149

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CRIMINAL LAW – Appeal – Sentence – Applicant convicted of sexual offences against five female victims – Offending occurred over period of almost 30 years – Applicant sentenced to total effective sentence of 27 years’ imprisonment with non-parole period of 20 years – Crown conceded on appeal that prosecutor had led trial judge into error – Prosecutor had submitted that trial judge could ‘step outside’ current sentencing practices in sentencing applicant – Applicant re-sentenced to total effective sentence of 21 years’ imprisonment with non-parole period of 17 years – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Boyce	Lewenberg & Lewenberg
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
BONGIORNO JA:
BELL AJA:

Between September 2008 and March 2009, the applicant, Jeffrey Peter Bavage, was convicted of a series of sexual assaults on five female victims. The convictions arose out of four trials, the first involving two victims and each of the other three involving a single victim. The offences occurred over a period of almost 30 years, commencing in April 1977 and ending in January 2007. Bavage’s victims were aged between about 7 and 17 at the time each of them was assaulted. Bavage was aged 15 at the time of the first offence and 45 at the time of the last.

Following a plea in mitigation on 24 April 2009, Bavage was sentenced on 13 May 2009 as follows:

Presentment C0705893A

Complainants: A and B

Count Offence Maximum Sentence Cumulation

1 Indecent assault on girl under 16 Five years’ imprisonment Three years’ imprisonment

2 Indecent assault on girl under 16 Five years’ imprisonment Three years’ imprisonment

3 Indecent assault on girl under 16 Five years’ imprisonment Three years’ imprisonment

4 Carnal knowledge of girl under 10 20 years’ imprisonment Seven years’ imprisonment Base sentence

6 Attempted indecent assault Five years’ imprisonment Four years’ imprisonment One year

7

Indecent assault on girl under 16

Five years’ imprisonment

Three years’ imprisonment

8

Indecent assault on girl under 16

Five years’ imprisonment

Three years’ imprisonment

9

Indecent assault on girl under 16

Five years’ imprisonment

Three years’ imprisonment

10 Sexual penetration of child under 16 10 years’ imprisonment Seven years’ imprisonment Four years

Total effective sentence: 12 years’ imprisonment

Presentment C0705893D.3

Complainant: C

Count Offence Maximum Sentence Cumulation

1 Rape 25 years’ imprisonment 10 years’ imprisonment

Total effective sentence: 10 years’ imprisonment

Presentment C0705893E

Complainant: D

Count Offence Maximum Sentence Cumulation

1 Rape 25 years’ imprisonment 14 years’ imprisonment Base sentence

2 False imprisonment 10 years’ imprisonment Three years’ imprisonment One year

Total effective sentence: 15 years’…

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 Bavage v The Queen

Details

AGLC: Bavage v The Queen [2012] VSCA 149
Case: [2012] VSCA 149
Decision Date: 29 June 2012

CaseChat Overview and Summary

The case of Bavage v The Queen involved an appeal by the applicant, who had been convicted of multiple sexual offences against five female victims over a period of almost 30 years. The applicant was originally sentenced to a total effective sentence of 27 years’ imprisonment with a non-parole period of 20 years. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the trial judge had been led into error by the prosecutor, who suggested that the trial judge could 'step outside' current sentencing practices. The Crown conceded that the prosecutor had indeed led the trial judge into error.

The court considered the extent to which the prosecutor’s comments influenced the original sentence. It was established that the prosecutor's suggestion that the trial judge could deviate from established sentencing principles improperly directed the judge in determining the appropriate sentence. Given this error, the court re-evaluated the sentence, taking into account the nature and gravity of the offences, the number of victims, and the principles of sentencing. The court concluded that the original sentence was too severe and re-sentenced the applicant to a total effective sentence of 21 years’ imprisonment with a non-parole period of 17 years. The court found no point of principle that required further examination.

The High Court's final order was that the applicant's sentence was to be reduced to a total effective sentence of 21 years’ imprisonment with a non-parole period of 17 years. This decision underscores the importance of adhering to established sentencing practices and the potential impact of prosecutorial error on the sentencing process.

Orders