SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0259
| ADRIAN RUSSELL BOURNE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL ACJ, BUCHANAN and BONGIORNO JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 January 2011 |
| DATE OF ORDERS | 20 January 2011 |
| DATE OF JUDGMENT | 3 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 159 |
| JUDGMENT APPEALED FROM | DPP v Bourne (Unreported, County Court of Victoria, Judge Howard, 23 July 2010) |
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CRIMINAL LAW – Appeal – Sentence – Rape – Three years’ imprisonment, 18 months suspended – Non-consensual act after period of consensual activity – Delay – Four years between offence and report to police – Relationship with victim continued for three years after offence – Offender rehabilitated – Nexus between offending and appellant’s experience of child sexual abuse – Expert evidence – Sentencing range – Whether sentence should have been wholly-suspended – Whether exceptional circumstances – Crown change of position – Crown concession of error – Appeal allowed – Balance of sentence suspended – Sentencing Act1991 (Vic) s 27(2B).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Glynn | Andrew George Solicitors |
| For the Respondent | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL ACJ
BUCHANAN JA
BONGIORNO JA:
The appellant pleaded guilty to a single count of rape. He was sentenced to 3 years’ imprisonment. The judge directed that 18 months of the sentence be suspended for a period of 18 months.
Having originally opposed (unsuccessfully) the application for leave to appeal against sentence, the Crown subsequently filed written submissions conceding that the appeal should be allowed, for reasons set out below. By the time of the appeal hearing, the appellant had served almost 6 months in custody. The Crown conceded that, in resentencing, the Court should not require him to serve any further time in custody. As will appear, these Crown concessions reflected a wholesale reversal of the position which the Crown had adopted at the time of sentencing.
The Court concluded that the concessions were properly made and that the appellant should be resentenced. The 3 year term of imprisonment was reimposed but we directed that the balance of the sentence – some 2 years 6 months – be wholly-suspended. These are our reasons for that decision.
Factual background
The victim of the rape was the appellant’s partner, with whom he had been in a relationship for almost a year at the time the offence was committed. One child had been born of the relationship, some seven weeks before the offence. For reasons which will become apparent, it is relevant to note that the birth had been by caesarean section.
On the night in question, the appellant and his partner, together with the new baby and his partner’s daughter, were staying at a weekender belonging to the appellant. The sentencing judge described the circumstances of the offence as follows:
During the course of the night, you drank two thirds of a bottle of Bundaberg Rum and half a slab of beer.…
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- AGLC
- Bourne v The Queen [2011] VSCA 159
- Case
- [2011] VSCA 159
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether the sentence imposed was appropriate in light of the appellant's rehabilitation and the delayed reporting of the offence, and whether the sentencing judge should have considered the appellant's experience of child sexual abuse as exceptional circumstances warranting a wholly-suspended sentence. The court examined the principles of sentencing in Victoria, particularly under the Sentencing Act 1991, and the relevance of exceptional circumstances in determining the appropriate sentence. Additionally, the court assessed whether the Crown's change of position and concession of error impacted the outcome of the appeal.
The court found that the appellant's rehabilitation, the delayed reporting, and the continued relationship with the victim constituted significant mitigating factors. The expert evidence presented on the impact of the appellant's past experiences was also considered relevant. The court held that the sentencing judge erred by not adequately considering these exceptional circumstances and the appropriate sentencing range. Consequently, the appeal was allowed, and the sentence was varied to suspend the balance of the sentence, in accordance with the Sentencing Act 1991 (Vic) s 27(2B). The court's decision was based on the principle that the exceptional circumstances warranted a wholly-suspended sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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