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Bourne v The Queen

Bourne v The Queen

Case [2011] VSCA 159 3 June 2011

Exceptional Circumstances

Criminal Law

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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.…

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 Bourne v The Queen

Details

AGLC: Bourne v The Queen [2011] VSCA 159
Case: [2011] VSCA 159
Decision Date: 3 June 2011

CaseChat Overview and Summary

In the case of Bourne v The Queen, the appellant was convicted of rape following an incident where non-consensual sexual activity occurred after a period of consensual activity. The Supreme Court of Victoria was tasked with assessing the appeal against the sentence imposed, which was three years' imprisonment with 18 months suspended. The dispute centred on whether the sentence was appropriate given the appellant's rehabilitation, the delayed reporting of the offence, and the continuing relationship with the victim for three years post-offence. The appellant also argued that the sentencing judge should have considered the nexus between the offending and the appellant's experience of child sexual abuse as exceptional circumstances warranting a wholly-suspended sentence.

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