DPP v BAB - [2002] VSCA 93

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 26 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
B.A.B.

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JUDGES:	CALLAWAY and VINCENT, JJ.A., and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 June 2002
DATE OF JUDGMENT:	25 June 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 93

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Criminal law – Sentencing – Rape – Incest – Malicious wounding – Crown appeal – Victims aged between 11 and 15 – Offences committed between 1977 and 1981 – Respondent sentenced as serious sexual offender on all but three counts – Individual sentences inadequate to reflect gravity of offending – Cumulation inadequate to reflect numerous offences against two victims over lengthy period – Double jeopardy – Sentence of eight years' imprisonment with non-parole period of four-and-a-half years increased to sentence of 12 years' imprisonment with non-parole period of eight years – Sentencing Act 1991, s.6E.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Ms R. Carlin	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C. with Mr M.J. Gibson	Galbally Rolfe

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by O’Bryan, A.J.A. I agree in them and in the disposition of the appeal that his Honour proposes. There are only two points that I wish to add.

The first is to emphasize that these were very bad examples of offences of their kind and that the sentences we are imposing are to be understood in that light. Had that not been so, or had there been deeper and earlier expressed remorse,[1] more weight might have been given to the reformation achieved by the respondent during the intervening period.
[1]The sentencing judge said only that he was “prepared to accept on balance” that the respondent was “to some extent at least, remorseful”. See also [40] below.

The second is to say that the concept of double jeopardy, which is reflected in the overall total effective sentence[2], does not require us to impose a sentence at or near the bottom of the range. All that it requires us to do is to give the respondent an adequate discount for having to stand for sentence twice at the instance of the Crown.[3] To give him more than that would be unwarranted and contrary to the public interest.

VINCENT, J.A.:

[2]The individual sentences, and the total effective sentences in respect of each victim, have not been discounted: see [63] and [69] below and compare Director of Public Prosecutions v. Glazner [2001] VSCA 204 at [11].

[3]R. v. Boxtel [1994] 2 V.R. 98 at 104-05; R. v. Clarke [1996] 2 V.R. 520 at 522 (point 4); and Lowndes v. R. (1999) 195 C.L.R. 665 at [15]. I do not think that Kirby, J. intended anything different by his observation in Dinsdale v. R. (2000) 202 C.L.R. 321 at [62] (second last sentence): see and compare R. v. Leucus (1995) 78 A.Crim.R 40 at 52 (especially the sentence beginning…

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 DPP v BAB

Details

AGLC: DPP v BAB [2002] VSCA 93
Case: [2002] VSCA 93
Decision Date: 25 June 2002

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions appealing against the sentence imposed on the respondent, BAB, who had been convicted of multiple serious sexual offences, including rape and incest, and malicious wounding. The victims were aged between 11 and 15 years old at the time of the offences, which occurred between 1977 and 1981. The respondent was sentenced as a serious sexual offender for all but three counts. The appeal focused on the adequacy of the sentence, both in terms of the individual sentences and the cumulation of the sentences, to reflect the gravity of the offending and the number of offences against two victims over a lengthy period.

The central legal issue was whether the sentence imposed was inadequate in reflecting the gravity of the respondent's criminal conduct, particularly given the number of offences and the age of the victims. The Crown argued that the sentences for individual counts were inadequate and the cumulation of the sentences failed to adequately reflect the numerous offences against two victims over a lengthy period. The Court needed to consider whether the sentence was manifestly inadequate and whether the principle of double jeopardy applied to prevent the respondent being sentenced twice for the same conduct.

The Court found that the sentence imposed was inadequate in several respects. It concluded that the individual sentences were insufficient to reflect the gravity of the offending. The cumulation of the sentences also failed to adequately reflect the numerous offences against two victims over a lengthy period. The Court found that the principle of double jeopardy did not prevent the respondent being sentenced for all of the offences. Consequently, the Court increased the sentence of eight years' imprisonment with a non-parole period of four-and-a-half years to a sentence of 12 years' imprisonment with a non-parole period of eight years, pursuant to section 6E of the Sentencing Act 1991.

Orders