CRIMINAL LAW – Sentence – Director’s appeal – 34 historical sex offences committed against children – Sentence of 18 months for base sentence – Total effective sentence 6 years, non-parole period 3 years – Sentenced as ‘serious sexual offender’ under Sentencing Act 1991 pt 2A – Whether base sentence manifestly inadequate – Significance of delay – Whether orders for cumulation inadequate resulting in total effective sentence which is manifestly inadequate – Application of Sentencing Act 1991 s 6E – Principle of totality – Whether non-parole period manifestly inadequate – General deterrence.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr G J C Silbert QC with Mr B L Sonnet
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Respondent
Mr D C Hallowes with Ms F H Todd
Croxford Partners
OSBORN JA KAYE JA McLEISH JA:
On 27 March 2015 the respondent was sentenced in the County Court to 6 years’ imprisonment with a non-parole period of 3 years after pleading guilty to 34 historical sex offences committed between 1971 and about 1985. He had pleaded guilty to 22 charges of indecent assault upon a male person contrary to s 68(3A) of the Crimes Act 1958 (as it was at the time of the relevant offending); 11 charges of indecent assault contrary to s 44(1) of that Act (again, as it was at the time of the relevant offending); and one charge of gross indecency contrary to s 50(1) and (2)(a).
The Director of Public Prosecutions (the ‘Director’) appeals against the sentence on three grounds, each of which contends that an aspect of the sentence was manifestly inadequate in all the circumstances:
1.The individual sentence imposed on charge 26 is manifestly inadequate in all the circumstances.
2.The orders for cumulation on counts 4, 5, 6, 9, 10, 12, 17, 18, 25, 27, 28, 30, 33 & 34 are inadequate thus resulting in a ‘total effective sentence’ which is manifestly inadequate in all the circumstances.
3.The fixing of a non-parole period of 3 years imprisonment (as a proportion of the total effective sentence of 6 years imprisonment) is manifestly inadequate in all the circumstances.
For the reasons that follow, we would allow the appeal and re-sentence the respondent to a total effective sentence of 8 years and 5 months’ imprisonment with a non-parole period of 5 years and 8 months.
Circumstances of the offending
At the time of the offending, the respondent was known as Edward Vernon Dowlan. He changed his name to Ted Bales on 14 July 2011.
The offending, involving 20 complainants, occurred between 1971 and about 1985. The respondent was aged between 21 and 36. He was a Christian Brother and taught…
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.
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Details
AGLC
DPP v Bales [2015] VSCA 261
Case
[2015] VSCA 261
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions sought an appeal against the sentence of a defendant, who had been convicted of 34 historical sex offences against children. The case was heard in the Court of Appeal. The Director argued that the sentence of 18 months for the base offence was manifestly inadequate and that the total effective sentence of six years with a non-parole period of three years was also inadequate. The Director contended that the sentencing orders for cumulation were inadequate, resulting in an overall sentence that was manifestly inadequate.
The court considered whether the base sentence was manifestly inadequate, taking into account the significant delay between the offences and the sentencing, and the defendant's lack of remorse. The court also considered the principle of totality, as set out in the Sentencing Act 1991, and whether the non-parole period was manifestly inadequate. The Director argued that the sentence did not adequately reflect the seriousness of the offences and the need for general deterrence.
The court found that the base sentence was manifestly inadequate, and that the total effective sentence and non-parole period were also inadequate. The court held that the delay between the offences and sentencing did not mitigate the seriousness of the offences, and that the principle of totality required a sentence that reflected the cumulative seriousness of the offences. The court also found that the sentence did not adequately reflect the need for general deterrence. The appeal was allowed, and the matter was remitted to the sentencing court for re-sentencing.