JUDGES:	BONGIORNO, HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2010 and 1 February 2011
DATE OF JUDGMENT:	1 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 15
JUDGMENT APPEALED FROM	R v Beyer (Unreported, County Court of Victoria, Judge Allen, 26 September 2008)

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CRIMINAL LAW – Sentence – Unlawful and indecent assault on a male person, gross indecency, indecent assault on a female, indecent assault, sexual penetration of a child between the ages of 10 and 16 years and attempted buggery – Offending over a period of twelve years – Plea of guilty – Total effective sentence of nine years and four months’ imprisonment – Non-parole period of six years – Whether individual sentences, the total effective sentence and the non-parole period manifestly excessive – Whether sentencing judge erred in failing to place any or any sufficient weight upon delay and on the appellant’s age, ill health, absence of offending since 1992 and rehabilitation – Whether effect on victims led sentencing judge to undervalue mitigating factors – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Michael J Gleeson & Associates
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

BONGIORNO JA:

I will ask Harper JA to deliver the first judgment.

HARPER JA:

On 28 August 2009, Nettle JA granted the appellant’s application for leave to appeal against a total effective sentence of nine years and four months’ imprisonment, with a non-parole period of six years, imposed upon the appellant after he had pleaded guilty to 15 counts of unlawful and indecent assault on a male person, six counts of gross indecency, one count of indecent assault on a female, seven counts of indecent assault, one count of sexual penetration of a child between the ages of 10 and 16 years and one count of attempted buggery. The offences were committed between 1973 and 1985.

The appellant, who was born on 15 October 1941, was aged 32 when the offending commenced (in 1973 – 37 years ago) and 44 when, 12 years later, it concluded (in 1985 – 25 years ago). He will turn 70 in October this year.

On 26 September 2008, the appellant was sentenced as follows:

Count Offence Maximum Sentence Cumulation

1 Unlawful and indecent assault of a male person (representative count – 6-12 acts) 5y (first offence), 10y (for each offence thereafter) 18m 8m

2 Gross indecency (representative count – 6-12 acts) 3yrs 12m -

3 Unlawful and indecent assault of a male person (representative count – 4 acts) 5y (first offence), 10y (for each offence thereafter) 18m 4m

4 Unlawful and indecent assault of a male person (representative count – 2-7 acts) 5y (first offence), 10y (for each offence thereafter) 2y 9m

5 Unlawful and indecent assault of a male person (representative count – weekly act over 12 months) 5y (first…

Count	Offence	Maximum	Sentence	Cumulation
1	Unlawful and indecent assault of a male person (representative count – 6-12 acts)	5y (first offence), 10y (for each offence thereafter)	18m	8m
2	Gross indecency (representative count – 6-12 acts)	3yrs	12m	-
3	Unlawful and indecent assault of a male person (representative count – 4 acts)	5y (first offence), 10y (for each offence thereafter)	18m	4m
4	Unlawful and indecent assault of a male person (representative count – 2-7 acts)	5y (first offence), 10y (for each offence thereafter)	2y	9m
5	Unlawful and indecent assault of a male person (representative count – weekly act over 12 months)	5y (first…

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 Beyer v R

Details

AGLC: Beyer v R [2011] VSCA 15
Case: [2011] VSCA 15
Decision Date: 1 February 2011

CaseChat Overview and Summary

In the Supreme Court of South Australia, Beyer appealed against his conviction and sentence. The appellant was found guilty of multiple offences, including unlawful and indecent assault on a male, gross indecency, indecent assault on a female, sexual penetration of a child between the ages of 10 and 16 years, and attempted buggery, committed over a period of twelve years. Beyer’s appeal challenged the severity of his sentence, arguing that the individual sentences, the total effective sentence, and the non-parole period were all manifestly excessive. The appellant also submitted that the sentencing judge failed to adequately consider factors such as the delay in reporting the offences, the appellant’s age, ill health, absence of offending since 1992, and his rehabilitation. Furthermore, it was argued that the impact on the victims had led the sentencing judge to undervalue the mitigating factors.

The court was required to determine whether the sentence imposed by the primary judge was manifestly excessive, taking into account the nature and circumstances of the offences and the appellant's personal circumstances. The appeal hinged on whether the sentencing judge erred by not sufficiently considering the delay in reporting, the appellant's age, ill health, and rehabilitation, and whether the effect on the victims led to an undervaluation of the mitigating factors. The court considered the principles of sentencing, the principles of totality, and the appropriate weight to be given to the various mitigating and aggravating factors in the sentencing process.

The court found that the appellant’s offending spanned over twelve years, affecting multiple victims, and included serious sexual offences against children. Despite the appellant’s absence of offending since 1992 and his rehabilitation efforts, the court held that the total effective sentence and the non-parole period were not manifestly excessive. The court also determined that the sentencing judge had appropriately considered the delay in reporting and the appellant’s personal circumstances, including his age, ill health, and rehabilitation. The court was satisfied that the sentencing judge had appropriately balanced the mitigating and aggravating factors in light of the impact on the victims, and thus dismissed the appeal.

The appeal was dismissed, and the sentence imposed by the primary judge was upheld.

Orders