Bosanquet v The Queen - [2012] VSCA 1

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0228
DAVID BOSANQUET	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	16 January 2012
DATE OF JUDGMENT:	16 January 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 1
JUDGMENT APPEALED FROM:	R v Bosanquet (Unreported, County Court of Victoria, Judge Hogan, 16 September 2009)

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CRIMINAL LAW – Sentence – Committing an indecent act with a child under the age of 16 – Sentencing judge did not rely upon circumstances of aggravation that were not established by the plea and did not take into account the commission of uncharged offences as constituting circumstances of aggravation – Non-parole period 75% of the head sentence not manifestly excessive – Sentencing judge did not err in stating that the offending occurred over a period of 2 years – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms Mia Stylianou	Doogue & O’Brien
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing five counts of committing an indecent act with a child under the age of 16.

After a plea, the appellant was sentenced to be imprisoned for a term of 2 years on count 1, for a term of 6 months on each of counts 2, 3 and 5 and for a term of 16 months on count 4. With a measure of cumulation, a total effective sentence of 4 years’ imprisonment was produced. A minimum term of 3 years’ imprisonment was fixed.

The appellant was sentenced as a serious sexual offender in respect of three counts.

The offending was alleged to have taken place between April 2004 and December 2006 when the appellant was aged between 53 and 56 years. The three victims of the offences were children of persons who were friends of the appellant.

Count 1, a rolled up count, concerned a 15‑year‑old girl who was the daughter of a friend of the appellant. The appellant boarded with the family for some months. When the appellant and the complainant were together in the dining room, the appellant placed his hand on the inside of the complainant’s thigh and rubbed it upwards towards the outside of the complainant’s vaginal area over the top of her clothing. A short time later, on the same day, the appellant placed his hand inside the complainant’s bra and squeezed her left breast. The complainant pushed his hand away and ran off.

The complainant the subject matter of counts 2‑4 was aged between six and nine years when the offences were committed. The appellant was a friend of the complainant’s mother and visited the family regularly, bringing books for the complainant from time to time.

The offences occurred during Christmas and Easter visits by the appellant between April 2004 and December 2006.

The appellant touched the complainant’s vaginal area over the top…

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 Bosanquet v The Queen

Details

AGLC: Bosanquet v The Queen [2012] VSCA 1
Case: [2012] VSCA 1
Decision Date: 16 January 2012

CaseChat Overview and Summary

In Bosanquet v The Queen, the appellant was convicted of committing an indecent act with a child under the age of 16, and the matter was before the court for consideration of the sentence imposed. The appeal focused on whether the sentencing judge erred in the assessment of the sentence, particularly whether the non-parole period was manifestly excessive. The court was also asked to consider whether the judge overlooked certain circumstances of aggravation and uncharged offences. The appeal was heard in the High Court of Australia, which was tasked with determining the correctness of the sentence and the process by which it was determined.

The primary legal issue before the court was whether the sentencing judge had correctly applied the principles of sentencing, specifically in relation to the identification and consideration of circumstances of aggravation. The appellant argued that the sentencing judge did not rely on certain circumstances of aggravation that were not established by the plea and failed to take into account the commission of uncharged offences as circumstances of aggravation. The court needed to determine whether these omissions constituted a significant error that warranted interference with the sentence.

In delivering the judgment, the High Court found that the sentencing judge had not erred in his assessment of the circumstances of aggravation. The court held that the judge correctly identified and relied upon the circumstances of aggravation that were established by the plea. The court further found that the uncharged offences were not considered because they were not established by the plea. The court emphasised that the sentence imposed was not manifestly excessive and that the non-parole period of 75% of the head sentence was within the appropriate range. The court also noted that the sentencing judge's understanding of the duration of the offending, which he stated occurred over a period of 2 years, was not incorrect. Consequently, the court concluded that there was no point of principle that required the intervention of the court.

The High Court dismissed the appeal and upheld the sentence imposed by the sentencing judge. The court found no error in the process or outcome of the sentencing, affirming the non-parole period as appropriate and within the bounds of judicial discretion.

Orders