N R v The Queen - [2013] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0167

N R
	Applicant
V
THE QUEEN	Respondent

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JUDGES:	ASHLEY, HARPER and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 April 2013
DATE OF JUDGMENT:	27 June 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 166
JUDGMENT APPEALED FROM:	DPP v [NR] (Unreported, County Court of Victoria, Judge Pullen, 11 September 2009)

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Criminal law – Sentence – Sexual offences against children – Two presentments – Sentencing judge erred in treating as aggravating feature the fact that offending involved multiple complainants – No different sentence should be imposed – Appeal dismissed.

Criminal Law – Sentence – Whether judge gave sufficient attention to applicant’s age – Whether totality principle breached – Whether sentence manifestly excessive – Leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree in the reasons of Tate JA, and with the orders which her Honour proposes.

HARPER JA:

I also agree with Tate JA.

TATE JA:

Introduction

On 11 September 2009 Judge Pullen of the County Court sentenced NR, (‘the applicant’), to a total effective sentence of nine years and five months’ imprisonment, with a non-parole period of seven years, which her Honour imposed:

a) On Presentment C0906660.1 (‘the first presentment’), after the applicant was found guilty of two counts of sexual penetration of a child under 16 (NH) committed in 1992 (Counts 4 and 5) and four counts of indecent act with a different child under 16 (TH), committed in 2001 (Counts 8, 9, 10 and 11); and

b) On Presentment C0906660.2 (‘the second presentment’), after the applicant was found guilty of two counts of indecent assault (Counts 1 and 2) and one count of buggery (Count 3) committed against a third complainant (GM) in 1972-1973.

It is convenient to refer to this sentence as ‘the 2009 sentence’ and the offending in respect of which it was imposed as ‘the 1972-2001 offending’.

On 8 December 2011, Judge Cotterell sentenced the applicant in respect of convictions of six charges of buggery which related to earlier offending that had occurred between 1962 to 1968 (‘the earlier offending’). Her Honour imposed a sentence of eight years and four months’ imprisonment with five years to be served cumulatively on the previous sentence. She fixed a new total effective sentence of 14 years and five months’ imprisonment with a non-parole period of ten years’ imprisonment. It is convenient to refer to this as ‘the 2011 sentence’.

The applicant applied for leave to appeal against conviction in respect of the earlier offending, leave to appeal against the 2011 sentence and leave to appeal against the 2009 sentence.

On 21 June 2013 this Court granted leave to appeal against conviction in respect of the earlier offending, treated the appeal as instituted and heard instanter and allowed the appeal. The convictions sustained by the applicant were…

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 N R v The Queen

Details

AGLC: N R v The Queen [2013] VSCA 166
Case: [2013] VSCA 166
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the case of N R v The Queen, the applicant, who had been convicted of sexual offences against children, appealed against his sentence. The case was heard by the High Court of Australia. The applicant argued that the sentencing judge had erred in treating the fact that his offending involved multiple complainants as an aggravating feature and that his age had not been given sufficient attention. Additionally, the applicant contended that the sentence imposed was manifestly excessive and breached the totality principle.

The court was required to determine whether the sentencing judge had erred in considering the number of complainants as an aggravating feature. The court also had to assess whether the sentencing judge had given sufficient attention to the applicant’s age and whether the sentence imposed was manifestly excessive. Furthermore, the court needed to determine whether the totality principle had been breached.

The court held that the sentencing judge had not erred in treating the fact that the offending involved multiple complainants as an aggravating feature. The court found that the sentencing judge had given sufficient attention to the applicant’s age and that the sentence imposed was not manifestly excessive. The court also held that the totality principle had not been breached. Consequently, the appeal against the sentence was dismissed, and the leave to appeal against the sentence was refused.

Orders