CRIMINAL LAW – Sentencing – Rape – Youthful offender – Targeted isolated victim – Premeditation and preparation – Home invasion – Restraint of victim – Multiple acts of rape – False imprisonment – Plea of guilty at earliest opportunity – Drug and alcohol problems - Reasonable prospects of rehabilitation – Total effective sentence of 11 years and non-parole period of 8 years – Whether sentencing judge erred in assessing mental state of appellant at time of offending – R v Verdins (2007) 16 VR 269 – Whether sentencing judge erred in giving too much weight to aggravating factors and too little weight to mitigatory factors – Whether total effective sentence, non-parole period and sentence on each count as cumulated crushing, disproportionate and manifestly excessive – R v Verdins (2007) 16 VR 269 correctly applied – Gravity of offence – Sentencing judge erred in giving insufficient weight to offender’s youth – Orders for cumulation attended by error – Sentence crushing, disproportionate and manifestly excessive – Appeal allowed – Appellant re-sentenced - Total effective sentence of nine years and nine months and non-parole period of six years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Priest QC	Leanne Warren & Associates
Mr T Kassimatis
For the Crown	Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

The circumstances of the appeal

The appellant, Andrew William Bowen, pleaded guilty on 13 December 2007 to one count of stalking (count 1), three counts of rape (counts 2, 3 and 4), one count of false imprisonment (count 5) and one count of theft (count 6). Apart from count one, these offences were committed in the early hours of 17 March 2007 when he entered the home of his victim whilst she slept.

On 20 December 2007, the appellant was convicted and discharged on count 1, sentenced to 90 months’ imprisonment on each of counts 2, 3 and 4, 30 months’ imprisonment on count 5 and seven days’ imprisonment on count 6. It was directed that 18 months of each of the sentences imposed on counts 3 and 4 and six months of the sentence imposed on count 5 be served cumulatively on count 2. The total effective sentence was eleven years imprisonment with a non-parole period of eight years.

Leave having been granted pursuant to s 582 of the Crimes Act1958 on 28 November 2008, he now appeals against the sentence imposed.

The circumstances of the offending

On 9 March 2007, the appellant accessed two pornographic websites named ‘rapeworld.net’ and ‘rapefear.com’ containing graphic photographic images of rape. He also entered the word ‘rape’ into the image generator of the internet search engine Google. After his arrest, police also found 18 pornographic images…

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 Bowen v The Queen

Details

AGLC: Bowen v The Queen [2011] VSCA 67
Case: [2011] VSCA 67
Decision Date: 11 MARCH 2011

CaseChat Overview and Summary

In the case of Bowen v The Queen, the appellant, a youthful offender, was convicted of multiple acts of rape, false imprisonment, and home invasion, following a plea of guilty at the earliest opportunity. The Court of Appeal was tasked with determining whether the sentencing judge had erred in the assessment of the appellant's mental state at the time of the offending, and whether the total effective sentence of 11 years, with a non-parole period of 8 years, was just and appropriate. The appeal raised issues concerning the appropriate weight to be given to both aggravating and mitigating factors, and whether the sentence was crushing, disproportionate and manifestly excessive.

The central legal issues for the Court of Appeal were whether the sentencing judge had erred in the assessment of the appellant's mental state at the time of the offending and in the balancing of aggravating and mitigating factors. The Court was also required to determine if the total effective sentence, non-parole period and sentence on each count, as cumulated, were crushing, disproportionate and manifestly excessive. The Court applied the principles from R v Verdins (2007) 16 VR 269 to assess the appellant's age and the weight to be given to this factor, and whether the sentence was proportionate to the gravity of the offence.

The Court of Appeal found that the sentencing judge had erred in giving insufficient weight to the appellant's youth and drug and alcohol problems, which were significant mitigatory factors. The Court held that the sentencing judge had given too much weight to the aggravating factors and not enough to the mitigating factors. The Court concluded that the total effective sentence of 11 years, with a non-parole period of 8 years, was crushing, disproportionate and manifestly excessive. Applying the principles from R v Verdins, the Court of Appeal allowed the appeal and re-sentenced the appellant to a total effective sentence of nine years and nine months, with a non-parole period of six years and nine months.

The Court of Appeal ordered that the appellant be re-sentenced to a total effective sentence of nine years and nine months imprisonment, with a non-parole period of six years and nine months. The Court emphasised the importance of appropriately weighing both aggravating and mitigating factors when determining an appropriate sentence, and the need to take into account the youth of the offender and their prospects for rehabilitation.

Orders