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Hall v The Queen

Hall v The Queen

Case [2010] VSCA 349 17 December 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0674

BARRY WILLIAM HALL
	v
THE QUEEN

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JUDGES	MAXWELL P and REDLICH JA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 November 2010
DATE OF JUDGMENT	17 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 349
JUDGMENT APPEALED FROM	R v Barry Hall [2009] VCC 0784 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child – Breach of trust – Assessing level of criminality – Ibbs v The Queen (1987) 163 CLR 447 considered – Representative counts – Frequency of offending – Sentences not manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Mahonys Solicitors
For the Crown	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA:

The appellant pleaded guilty to two representative counts of sexual penetration of a child, and was sentenced as set out below. He now appeals, by leave, against the sentence imposed.

Count Offence Maximum Sentence Cumulation

1 Sexual penetration with child aged under 10 years (representative) 20y 5y BASE

2 Sexual penetration with child aged under 16 years (representative) 10y 2y 6m 12m

TES: 6y 6AAA TES: 8y

NPP: 3y NPP: 4y

Circumstances of the offending

The appellant was a very close friend of the victim’s father. He was looked upon as an uncle by the victim (R) and his siblings. Most weekends, R and his family would visit the appellant’s home to watch movies. The movie room was set up like an old movie theatre, with a projector room at the back.

The sexual abuse occurred during the years when R was between eight and 12 years old (1981-1985). It occurred in the projector room, while the rest of R’s family were watching a movie. The appellant would approach R whilst he was watching a movie, tap him on the shoulder and ask him to come into the projection room. R would go to the projection room where he would be seated on a stool and would watch the movie through the projection room window. The appellant would then remove R’s lower clothing and place R’s penis into his mouth. The appellant would masturbate whilst performing oral sex on R. There are two counts, both representative. The first count covers the period until R turned 10, at which point a different maximum penalty for the offence became applicable (as the table shows).

Almost 20 years later, in 2003, R visited the appellant at his home and asked him about the sexual abuse. R recorded the conversation. The appellant admitted having sexually interfered with R. At R’s request, the appellant then attended a meeting with him and his family, at which the appellant again admitted the sexual abuse. R had organised this meeting because he wanted his father to hear the appellant’s admission for himself. R’s father had previously refused to believe R when he reported the sexual abuse. According to R’s statement to police:

I knew…

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 Hall v The Queen

Details

AGLC: Hall v The Queen [2010] VSCA 349
Case: [2010] VSCA 349
Decision Date: 17 December 2010

CaseChat Overview and Summary

The appellant, Hall, was convicted of multiple offences involving the sexual penetration of a child under the age of 16 years. The court considered whether the sentence imposed was appropriate, taking into account the gravity of the crimes and the appellant’s position of trust. The appeal was heard in the High Court of Australia, which reviewed the sentence to ensure it was not manifestly excessive. The court considered the factors relevant to assessing the level of criminality and the impact of the appellant's breach of trust on the victim.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The court considered the principles set out in Ibbs v The Queen, which outline the criteria for determining the appropriate sentence in cases of sexual offences. The court also examined the nature and frequency of the offending, as well as the representative counts used in sentencing. The appellant argued that the sentence was disproportionate to the level of criminality, while the respondent maintained that the sentence was justified given the gravity of the offences.

The court found that the sentence was not manifestly excessive. The judges considered the severity of the offences, the appellant's breach of trust, and the impact on the victim. They also examined the representative counts and the frequency of the offending. The court concluded that the sentence appropriately reflected the level of criminality and the need for general deterrence. The appeal was dismissed, and the original sentence was upheld.

The court did not order any changes to the sentence. The appellant's appeal was dismissed, and the original sentence was confirmed as appropriate.

Orders