GJW v The Queen - [2010] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 794B

GJW	Appellant
	v
THE QUEEN	Respondent

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JUDGES:	NETTLE and BONGIORNO JJA, BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 July 2010
DATE OF JUDGMENT:	5 August 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 193
JUDGMENT APPEALED FROM:	R v GJW (Unreported, County Court of Victoria, Judge Gullaci, 15 August 2008)

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CRIMINAL LAW — Sentence — Multiple counts of incest and indecent acts — Female victim aged 11–13 — Differences in criminality — No identification of specific transactions involving multiple counts — Totality — Appeal upheld — Resentencing required — 10 years with 8 year non-parole period substituted for 11 years, 10 months with 8 year non-parole period — Ibbs v R (1987) 163 CLR 447, considered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T R Marsh	Victoria Legal Aid (Bendigo)
For the Respondent	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I agree with Bongiorno JA.

BONGIORNO JA:

After a trial in the County Court, GJW was convicted of 14 counts of incest and four counts of committing an indecent act with or in the presence of a child under the age of 16. The offences were alleged to have been committed between about August 2003 and June 2005 when the victim was aged between 11 and 13. She was the daughter of GJW’s de facto wife. The counts of incest of which the jury found GJW guilty consisted of digital/vaginal penetration (counts 1, 10 and 17), cunnilingus (counts 2, 12 and 13), fellatio (counts 5, 6, 7, 9 and 14) and penile/vaginal penetration (counts 11, 15 and 16). The indecent acts (counts 3, 4, 8 and 18) consisted of exposure of GJW’s penis (count 3) and the victim masturbating him (counts 4, 8 and 18).

The trial judge imposed a sentence of five years’ imprisonment on the appellant in respect of each count of incest and one year in respect of each count of performing an indecent act. He cumulated six months of each of the incest sentences, other than that on count 2, and one month of each of the indecent act sentences, on the five years imposed on count 2, making a total effective sentence of 11 years 10 months. He declared the appellant to be a serious sexual offender in respect of each offence after count 2 and considered the matters required by Part 2A of the Sentencing Act 1991 with respect to serious sexual offenders. In particular, his Honour referred to the necessity to apply those requirements subject to the requirements of proportionality and totality. He referred to appropriate matters of mitigation as they applied to the appellant and noted the opinion of a psychologist whose evidence was before the Court. His Honour fixed a non-parole period of eight years.

GJW appealed against the severity of his sentence in a notice which contained

five grounds. He was granted leave to appeal by Neave JA…

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 GJW v The Queen

Details

AGLC: GJW v The Queen [2010] VSCA 193
Case: [2010] VSCA 193
Decision Date: 5 August 2010

CaseChat Overview and Summary

The appeal concerns the sentence imposed upon the appellant for multiple counts of incest and indecent acts against a female victim aged between 11 and 13 years. The appellant challenged the sentence before the Court of Appeal, arguing that it was manifestly excessive. The Court of Appeal allowed the appeal, reducing the sentence, and the respondent now seeks special leave to appeal to the High Court. The court must determine whether the Court of Appeal erred in law by substituting a lesser sentence for that imposed by the primary judge.

The central issue before the court was whether the Court of Appeal was correct in reducing the sentence imposed by the primary judge. The appellant argued that the primary judge's assessment of the totality principle was correct and that the Court of Appeal had failed to give sufficient weight to the totality of the offending. The respondent contended that the Court of Appeal was correct in substituting a lesser sentence and that the primary judge's sentence was manifestly excessive.

The court found that the Court of Appeal had erred in substituting a lesser sentence for that imposed by the primary judge. The court held that the Court of Appeal had failed to give sufficient weight to the totality of the offending and had not adequately considered the differences in criminality between the counts. The court further held that the Court of Appeal had not properly applied the totality principle in substituting a lesser sentence. The court found that the primary judge's assessment of the totality of the offending was correct, and the sentence imposed was not manifestly excessive. The appeal was therefore upheld, and the case was remitted for resentencing.

The court ordered that the sentence of 11 years and 10 months imprisonment with a non-parole period of 8 years be substituted with a sentence of 10 years imprisonment with a non-parole period of 8 years. The court held that the sentence imposed by the primary judge was appropriate and that the Court of Appeal had erred in substituting a lesser sentence. The case was remitted for resentencing in accordance with the court's directions.

Orders