R v Adams - [2002] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 158 of 2001

THE QUEEN
	v.
ALLAN LESLIE ADAMS

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JUDGES:	WINNEKE, P., BUCHANAN, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 July 2002
DATE OF JUDGMENT:	15 July 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 105

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Criminal law - Sentence - Eight counts of incest and two counts of attempted incest - Whether sufficient weight given to appellant's bipolar mental disorder - Total effective sentence of five years and non-parole period of three years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Leanne Warren & Associates

WINNEKE, P.:

I will ask Buchanan, J.A. to deliver the first judgment in this appeal.

BUCHANAN, J.A.:

On 8 June 2001 the appellant was arraigned in the County Court and pleaded guilty to a presentment containing eight counts of incest and two counts of attempted incest. The appellant is now 50 years of age. The offences occurred between 1 September 1998 and 25 December 1999 when the appellant was between 46 and 48 years of age. The victim was his stepdaughter, who was between the ages of 14 and 15 years when the offences were committed.

The appellant was sentenced to a term of three years and six months' imprisonment on each of six counts of incest (counts 5, 6, 7, 8, 9 and 10), to a term of three years' imprisonment on another count of incest (count 1) and to a term of two years and six months' imprisonment on yet another count of incest (count 2) and to a term of two years and three months' imprisonment on each of the counts of attempted incest (counts 3 and 4). The sentencing judge ordered that six months of the sentence imposed on count 4 and three months of the sentence imposed on counts 5 to 10 were to be served cumulatively upon the term of imprisonment imposed in respect of count 1 and upon each other, thereby creating a total effective sentence of five years' imprisonment. His Honour directed that a minimum term of three years be served before the appellant was to be eligible for parole.

The first offence took place on a Saturday night in Traralgon, where the appellant was living with his third wife, his young son and his wife's daughter, the complainant. The appellant's wife was away from home. The complainant and the appellant were in bed watching television. The appellant pressed a glass of rum and Coca Cola upon the complainant and commenced to kiss her, feeling her breasts and then licking her vagina. The appellant rolled onto his back, took off his underpants and pushed the complainant's head down on to his erect penis. The complainant said that she was scared because the appellant had a bad temper. She opened her mouth and put it on the appellant's penis because she knew he wanted her to do that.…

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 R v Adams

Details

AGLC: R v Adams [2002] VSCA 105
Case: [2002] VSCA 105
Decision Date: 15 July 2002

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant against his conviction and sentence. The appellant had been found guilty of eight counts of incest and two counts of attempted incest. The nature of the appeal focused on the adequacy of the weight given to the appellant's bipolar mental disorder during sentencing. The appeal was heard in the court of appeal, which had the authority to review the trial judge's decisions on both the conviction and the sentence.

The primary legal issue before the court was whether the trial judge had appropriately considered the appellant's mental health condition when determining the appropriate sentence. The appellant argued that his mental disorder warranted a lesser sentence than that imposed, given the mitigating factors associated with his condition. The court needed to decide if the sentence was manifestly excessive, particularly in light of the appellant's mental health status.

The court examined the trial judge's sentencing remarks and found that they had indeed given appropriate weight to the appellant's bipolar disorder. The court concluded that the sentence of five years in total effective time and a non-parole period of three years was not manifestly excessive, considering the severity of the offences and the need to protect the community. The court held that the trial judge had appropriately balanced the mitigating factors of the appellant's mental disorder with the need for punishment and deterrence. The appeal was, therefore, dismissed.

Orders