BS v The Queen - [2013] VSCA 108

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0243

BS	Appellant
	V
THE QUEEN	Respondent

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JUDGES	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 May 2013
DATE OF JUDGMENT	9 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 108
JUDGMENT APPEALED FROM	R v BS (Unreported, County Court of Victoria, Judge Gucciardo, 2 October 2012

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CRIMINAL LAW – Sentence – three charges of rape – guilty plea – Total effective sentence of six years and six months’ imprisonment – non-parole period of five years – whether non-parole period manifestly excessive – No explanation given, or obvious, why proportionately high non-parole period fixed – Serious offending and high moral culpability, but matters going in mitigation undervalued – Appeal allowed – Non-parole period of four years and three months’ imprisonment fixed.

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Appearances:	Counsel	Solicitors
For the Appellant	P. Doyle	Revill & Papa
For the Crown	B. Kissane	Office of Public Prosecutions

ASHLEY JA:

BS appeals by leave against sentence imposed in the County Court on 2 October 2012 when, having pleaded guilty to three charges of rape, he was sentenced to five years and six months’ imprisonment on Charge 1 and to five years’ imprisonment on each of Charges 2 and 3, this yielding, with some cumulation, a total effective sentence of six years and six months’ imprisonment, the judge then imposing a non-parole period of five years’ imprisonment.

Ground of appeal

There is a single ground of appeal:
The non-parole period of five years is manifestly excessive having particular regard to
(a)       good prospects of rehabilitation;
(b)      absence of prior convictions;
(c)       the utilitarian value of the plea;
(d)      onerous nature of incarceration.
Circumstances

The sentencing judge described the circumstances of the offending, consistently with the Crown summary at the plea hearing, this way:

In the early morning of 25 December 2005 you went to Crown Casino with a friend S.[1] There you met a young woman whom I shall refer to as ‘J’ for privacy reasons. It was her birthday the day before and she had gone to the Casino with a friend to celebrate that occasion and Christmas. She had moved from interstate a little over a week before and was not familiar with Melbourne suburbs. She danced, drank and was enjoying herself.
[1]The judge referred to the co-offender by name. It is not necessary to do so in these Reasons.
During the course of the night she met you and S and after being separated from her friend, S offered to drive her home which offer she accepted. S drove, with you in the passenger seat and J in the back. You drove away from the city to Campbellfield.
She had become apprehensive due to not understanding the language the two of you had been speaking and not knowing where she was. She was refused a request to leave the car or to drive home. And her fear had increased because when she attempted to leave the car, the driver…

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 BS v The Queen

Details

AGLC: BS v The Queen [2013] VSCA 108
Case: [2013] VSCA 108
Decision Date: 9 May 2013

CaseChat Overview and Summary

In the High Court of Australia, the matter of BS v The Queen concerned an appeal against the sentence imposed by the lower court following a guilty plea to three charges of rape. The appeal focused on the length of the non-parole period, which was set at five years, arguing it was manifestly excessive given the circumstances. The appellant, BS, argued that the total effective sentence of six years and six months was disproportionate, particularly the non-parole period, and that the lower court had undervalued mitigating factors. The central issue was whether the non-parole period was manifestly excessive in light of the overall sentence and the circumstances of the case.

The court considered the principles of sentencing, particularly the need for proportionality and the balance between punishment and deterrence. It examined the gravity of the offences, acknowledging the high moral culpability involved, and the appellant's background and personal circumstances. The court highlighted that while the offences were serious, the lower court had not adequately considered certain mitigating factors. The appeal centred on whether the non-parole period was so disproportionate to the total sentence that it required the court's intervention. After careful consideration, the court found that the original non-parole period was indeed excessive and adjusted it to four years and three months.

The High Court allowed the appeal, reducing the non-parole period. The court noted that while the offences were serious, there were mitigating factors that warranted a more lenient sentence. The court emphasised the importance of proportionality in sentencing, ensuring that the punishment fits the crime and the offender. The final order was that the non-parole period be reduced to four years and three months, reflecting a balanced approach to the appellant's culpability and the mitigating factors presented.

Orders