Buckley v The Queen

Case [2016] VSCA 222


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0194

JOHN HAMILTON BUCKLEY Applicant
v
THE QUEEN Respondent

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JUDGES: REDLICH, WEINBERG and McLEISH JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 25 August 2016
DATE OF JUDGMENT: 14 September 2016
MEDIUM NEUTRAL CITATION: [2016] VSCA 222
JUDGMENT APPEALED FROM: DPP v Buckley (Unreported, County Court of Victoria, Judge Patrick, 11 September 2015)

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CRIMINAL LAW – Appeal – Sentence – Election to renew application for leave to appeal against sentence – Indecent assault (9 counts), gross indecency (3 counts), sexual penetration of a person under 16 and possession of child pornography – Guilty plea – Offences committed against students or former students of school at which applicant was housemaster – Applicant 74 years old at time of sentence – Whether judge took proper account of applicant’s age – Whether sentences manifestly excessive – R v RLP (2009) 213 A Crim R 461, discussed – Application for leave to appeal granted, appeal dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Applicant Mr M D Stanton Slades & Parsons
For the Respondent Mr D A Trapnell QC Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA

McLEISH JA:

  1. The applicant pleaded guilty to a series of sexual offences.  With one exception, the offences were committed between 1980 and 1983 against children who attended, or had recently attended, the primary school where the applicant was a teacher.

  1. On 11 September 2015, the applicant was sentenced as follows:

Charge No Offence Maximum Penalty Sentence Cumulation
1 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 5 months
2 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 5 months
3 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 8 months
4 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 8 months
5 Indecent assault (s 68(3A) Crimes Act 1958) 5 years 2 years 6 months 8 months
6 Indecent assault (s 44(1) Crimes Act 1958) 5 years 6 months 3 months
7 Indecent assault (s 44(1) Crimes Act 1958) 5 years 4 months 2 months
8 Gross indecency (s 50(1) Crimes Act 1958) 3 years 3 months 1 month
9 Sexual penetration of a person under 16 (s 48(1) Crimes Act 1958) 15 years 3 years 6 months Base
10 Gross indecency (s 50(1) Crimes Act 1958) 3 years 3 months 2 months
11 Indecent assault (s 44(1) Crimes Act 1958) 5 years 4 months 1 month
12 Gross indecency (s 50(1) Crimes Act 1958) 3 years 10 months 4 months
13 Possession of child pornography (s 70(1) Crimes Act 1958) 5 years 3 months 1 month
TotalEffectiveSentence: 7 years 6 months
Non-ParolePeriod: 4 years 9 months
Pre-sentence detention: 53 days
Sentencebutforpleaofguilty: 10 years 6 months, with a non-parole period of 7 years 6 months
Other relevant orders:

Sentenced as a…

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Buckley v The Queen [2016] VSCA 222
Case
[2016] VSCA 222
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CaseChat Overview and Summary

The appellant, Buckley, was convicted of multiple sexual offences against students and former students of the school where he was housemaster, and was sentenced to imprisonment. Buckley appealed against the sentence, and subsequently elected to renew his application for leave to appeal. The primary issue before the court was whether the trial judge had given appropriate consideration to Buckley's age at the time of sentencing and whether the sentence imposed was manifestly excessive. The court considered the principles set out in R v RLP, which emphasised the importance of proportionality in sentencing and the relevance of the offender's age.

The court examined the principles of sentencing in light of Buckley's age, which was 74 at the time of sentencing. It considered the trial judge's remarks, which acknowledged Buckley's age but also emphasised the severity of the crimes and the need for general and specific deterrence. The court found that the trial judge had given Buckley's age proper consideration but had not sufficiently addressed the proportionality of the sentence. The court concluded that while the offences were serious, the sentences imposed were not manifestly excessive, and the appeal against sentence was dismissed. However, leave to appeal was granted due to the arguable error in the trial judge's consideration of Buckley's age.

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Background

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Evidence

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