DPP v Bowden (Unreported, County Court of Victoria, Judge Tinney, 29 November 2012)
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CRIMINAL LAW – Sentence – Indecent assault – Rape – Appellant committed offences whilst operating as a professional masseur – Reporting obligation under the Sex Offenders Registration Act 2004 s 11 – Appellant ordered to report for life – Meaning of ‘risk’ – Expert opinion not always essential to finding of risk – Risk must be found to exist at time of prisoner’s release – Section 11(3) confers a discretion as to whether to impose a registration order – Chan v The Queen [2006] VSCA 125 followed – Nature of risk and degree of likelihood of its eventuating to be balanced against onerous reporting obligations – Nigro v Secretary to the Department of Justice [2013] VSCA 213 considered – Expert opinion not always essential to finding of risk – Judge sentenced based on inference that appellant would continue to work as a masseur after release – Unsound basis – Appeal allowed – Life reporting obligation removed.
CRIMINAL LAW – Sentence – Manifest excess – Excessive sentence on indecent assault charge and high sentence on rape charge produced a total effective sentence which infringed the principle of totality – Appeal allowed – Appellant re-sentenced.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr J E McLoughlin
Victoria Legal Aid
For the Crown
Ms F L Dalziel
Mr C Hyland, Solicitor for Public Prosecutions
REDLICH JA
COGHLAN JA DIXON AJA:
The appellant appeals against the sentences set out in the table below.
But for the plea of guilty to Indictment C10260486.3, a sentence of 3 years’ imprisonment would have been imposed.
Other relevant orders
Appellant sentenced as a serious sexual offender in respect of Indictment C10260486.3 pursuant to s 6F of the Sentencing Act 1991 along with a life reporting obligation under the Sex Offenders Registration Act 2004.
After a successful application for severance, the appellant stood his trial in respect of the charges on the first indictment relating to the victim DW. After being found guilty by a jury of those two charges on 16 October 2012, the appellant offered to plead to the remaining offending and did so to one charge of indecent assault on the second indictment on 17 October 2012. That latter offending related to the victim…
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.
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Details
AGLC
Bowden v The Queen [2013] VSCA 382
Case
[2013] VSCA 382
Decision Date
CaseChat Overview and Summary
The appellant, Bowden, was convicted of indecent assault and rape, and sentenced to imprisonment with a life reporting obligation under the Sex Offenders Registration Act 2004. Bowden appealed against both the sentence and the life reporting obligation. The central issue was whether the trial judge erred in imposing a life reporting obligation and whether the total effective sentence was manifestly excessive.
The court examined the meaning of 'risk' as it pertains to the imposition of a reporting obligation under Section 11 of the Sex Offenders Registration Act 2004. The court found that expert opinion is not always necessary to establish the existence of a risk, and the risk must be determined at the time of the prisoner's release. The court followed the decision in Chan v The Queen, which held that Section 11(3) provides discretion to impose a registration order, and balanced the nature of the risk against the burden of reporting obligations. The court also considered Nigro v Secretary to the Department of Justice, reaffirming that expert opinion is not always required. The court concluded that the trial judge's inference that Bowden would continue to work as a masseur after release was unsound, and therefore removed the life reporting obligation.
The court further considered the principle of totality in sentencing, determining that the combination of an excessive sentence for the indecent assault charge and a high sentence for the rape charge resulted in a total effective sentence that was manifestly excessive. Consequently, the court allowed the appeal and re-sentenced the appellant. The life reporting obligation was removed, and the appellant was re-sentenced to a term that adhered to the principle of totality.