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Bussell (a pseudonym) v The Queen

Bussell (a pseudonym) v The Queen

Case [2014] VSCA 310 2 December 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S ACPR 2014 0196

GEORGE BUSSELL (A PSEUDONYM)[1]

Applicant

THE QUEEN

Respondent

[1]To ensure that there is no possibility of identification of the victim(s) of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	WEINBERG and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2014
DATE OF JUDGMENT:	2 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 310
JUDGMENT APPEALED FROM:	DPP v Bussell (a Pseudonym) (Unreported, County Court of Victoria, Judge Carmody, 8 August 2014)

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CRIMINAL LAW – Appeal – Sentence – Persistent sexual abuse of a child – Incest – Cumulation – Totality – Whether sentence manifestly excessive – Whether period of concurrency inadequate and offended principle of totality – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Sleeth	Victoria Legal Aid
For the Respondent	Mr R A Elston QC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA

BEACH JA:

Introduction

On 5 May 2014, the applicant pleaded guilty in the County Court to one charge of persistent sexual abuse of a child under the age of 16 and one charge of incest. A plea hearing was held on 31 July 2014. On 8 August 2014, the applicant was sentenced as follows:

Charges on Indictment
Offence

Maximum

Sentence

Cumulation

1
Persistent Sexual Abuse of a
Child Under 16

[s 47A(1) of the Crimes Act 1958]
25 years
[s 47A(4) of the Crimes Act 1958] 9 years Base

2 Incest
[s 74 of the Crimes Act 1958] 10 years
[s 74 of the Crimes Act 1958] 6 years 3 years

Total Effective Sentence: 12 years

Non-Parole Period: 9 Years

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 8 days

6AAA Statement: 14 years with a non-parole period of 11 years

Other relevant orders:

Pursuant to s 6F of the Sentencing Act 1991 the offender is sentenced as a Serious Sexual Offender in respect of charge 2.
Pursuant to s.464ZF of the Crimes Act 1958 the offender is to undergo a forensic procedure. Pursuant to s.34 of the Sex Offenders Registration Act 2004 the offender is to report for life.

The applicant seeks leave to appeal on the following grounds:

Ground1:      The period of concurrency ordered between the charges was inadequate and offended the principle of totality.
Ground2:      The sentence imposed on charge 2 was manifestly excessive, in light of current sentencing practices and the Applicant’s plea of guilty.
Ground3:      The total effective sentence was manifestly excessive, in light of current sentencing practices.

The offending

The applicant is the biological father of the complainant. The offending occurred between 1 September 2003 and 31 July 2012. During this period, the complainant was aged between seven and 16 years, and the applicant was aged between 26 and 35 years. The offending was constituted by the applicant’s sexual…

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 Bussell (a pseudonym) v The Queen

Details

AGLC: Bussell (a pseudonym) v The Queen [2014] VSCA 310
Case: [2014] VSCA 310
Decision Date: 2 December 2014

CaseChat Overview and Summary

The appellant, identified as Bussell, appealed against his sentence for persistent sexual abuse of a child, including incestuous acts. The Court of Appeal for the Supreme Court of Western Australia was tasked with determining whether the sentence imposed was manifestly excessive and if the period of concurrency was inadequate, thereby contravening the principle of totality. The appeal raised questions about the appropriateness of the sentence in light of the severity of the crimes committed.

The court examined whether the sentence was manifestly excessive, taking into account the cumulative nature of the offences and the appellant's history of offending. It also considered whether the period of concurrency was insufficient, thereby violating the principle of totality. The court highlighted the importance of ensuring that the sentence reflects the gravity of the crimes and the need for just punishment. The appellant argued that the sentence was excessive, while the Crown maintained that it was appropriate and proportionate to the crimes committed.

In dismissing the appeal, the court found that the sentence was not manifestly excessive and that the period of concurrency was adequate. The court held that the trial judge had carefully considered the relevant factors and had appropriately balanced the principles of denunciation, retribution, and deterrence. The court concluded that the sentence reflected the severity of the offences and the need to protect the community. The appeal was dismissed, and the original sentence was upheld.

Orders