BBA v The Queen - [2010] VSCA 174

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 624 of 2008

BBA
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 June 2010
DATE OF JUDGMENT:	24 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 174
JUDGMENT APPEALED FROM:	R v [BBA] (Unreported, County Court Of Victoria, Judge Murphy, 17 April 2008)

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CRIMINAL LAW – Three counts of rape – Three counts of administering a drug for purpose of sexual penetration – One count of arson with intent to endanger life – One count of recklessly causing serious injury – Whether total effective sentence of nine years with non-parole period of five years and six months manifestly excessive – Whether sentencing judge took psychiatric evidence sufficiently into account – Whether sentences imposed on counts 7 and 8 double punishment – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr R.F. Edney	Victoria Legal Aid
For the Crown	Ms D. Piekusis	Mr C. Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

The appellant, BBA, pleaded guilty in the County Court at Melbourne, on 10 April 2008, to three counts of rape (counts 1, 3 and 5), three counts of administering a drug with the intention of rendering a person incapable of resistance and thereby enabling the appellant to take part in an act of sexual penetration with that person (counts 2, 4 and 6), one count of setting fire to a house with the intention of endangering life (count 7), and one count of having recklessly caused serious injury to another (count 8). The victim in all counts was MJA, the appellant’s wife from whom he had separated, but with whom he was living at the time. The appellant was sentenced as a serious sexual offender on counts 3, 4, 5 and 6.

The appellant was sentenced, on 17 April 2008, as follows:

COUNT	OFFENCE	MAXIMUM	SENTENCE	CUMULATION
1	Rape	25 years	3 years	1 year
2	Administer drug for purpose of sexual penetration	10 years	15 months	-
3	Rape	25 years	3 years	1 year
4	Administer drug for purpose of sexual penetration	10 years	15 months	-
5	Rape	25 years	3 years	1 year
6	Administer drug for purpose of sexual penetration	10 years	15 months	-

Arson

15 years

5 years

Base

Recklessly causing serious injury

15 years

2 years

1 year

Total effective sentence: 9 years

Non-parole period: 5 years and 6 months

Circumstances surrounding the offending

The appellant and his wife were married in 1975. They separated in February 2007. The appellant moved out of the matrimonial home. However, in April 2007, the appellant returned to live in the matrimonial home by reason of his ill health, and because he could not be cared for elsewhere. The appellant and his wife maintained their separation, and slept in separate bedrooms during this time.

The appellant’s wife worked as a personal care attendant at a local nursing home. In mid April…

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 BBA v The Queen

Details

AGLC: BBA v The Queen [2010] VSCA 174
Case: [2010] VSCA 174
Decision Date: 24 June 2010

CaseChat Overview and Summary

The respondent was convicted and sentenced to a total effective term of nine years' imprisonment with a non-parole period of five years and six months. The respondent appealed against his conviction and sentence. The central issue in this appeal was whether the total effective sentence of nine years with a non-parole period of five years and six months was manifestly excessive. The respondent submitted that the sentencing judge failed to give sufficient weight to psychiatric evidence and that the sentences imposed on counts 7 and 8 constituted double punishment.

The Court considered the principles of sentencing and whether the sentence was manifestly excessive. It was found that the sentencing judge had taken into account the psychiatric evidence and had not erred in the exercise of her discretion. The Court also considered the cumulative effect of the sentences imposed on counts 7 and 8 and found that they did not amount to double punishment. The appeal was dismissed.

Orders