Buckley v The Queen - [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:

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.

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…

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 Buckley v The Queen

Details

AGLC: Buckley v The Queen [2016] VSCA 222
Case: [2016] VSCA 222
Decision Date: 14 September 2016

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.

Orders