R v AP - [2009] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 863 of 2007

R
	v
AP

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JUDGES:	MAXWELL P and BUCHANAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2009
DATE OF JUDGMENT:	23 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 249
JUDGMENT APPEALED FROM:	R v [AP] (Unreported, County Court of Victoria, Judge Chettle, 23 October 2007)

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CRIMINAL LAW – Appeal – Sentence – Incest – Carnal knowledge – Gross indecency with girl under 16 years of age – Indecent assault – Assault – Sentenced to 14 years’ imprisonment with non-parole period of seven years and six months – Sentencing error conceded by Crown – Direction for cumulation on count 8 exceeded length of sentence on that count – Sentencing discretion reopened – 15 year delay between first complaint and interview of appellant – Appellant aged 77 at time of sentence – Appeal allowed – Resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D G Wraith	Wightons Lawyers
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
BUCHANAN JA:

This is an appeal against sentence imposed in the County Court on 23 October 2007. The appellant (‘AP’) pleaded guilty to 13 counts and was sentenced as follows:

SENTENCE IMPOSED
[1]In fact, the serious sexual offender provisions did not apply to count 9.

Count

Offence

Age of Victim

Maximum penalty

Sentence

Cumulation

1

Indecent assault

8

5y

1y

2

Indecent assault

8

5y

1y

3

Indecent assault

8–12

5y

6m

4

Indecent assault

8–16

5y

1y

5

Indecent assault

10–16

5y

6m

6

Act of gross indecency with girl under the age of 16 years

10–15

2y

1y

7

Carnal knowledge of female over 10 by father

10–15

20y

6y

2y

8

Indecent assault

13–15

5y

6m

2y

9

Common law assault

16

2y

1y

1y

10

Carnal knowledge of female over 10 by father

16

20y

7y

Base

11

Carnal knowledge of female over 10 by father (rep)

16–19

20y

6y

2y

12

Incest (rep)

19–29

20y

6y

13

Incest (rep)

29–30

20y

6y

Total effective sentence: 14y

Non-parole period: 7y 6m

AP was sentenced as a serious sexual offender in respect of counts 3-13 inclusive.[1]

The victim of the sexual abuse was AP’s daughter. As appears from the table, she was aged eight when the first indecent assault occurred and was in her 20s when the acts of incest constituting counts 12 and 13 occurred. The summary of the facts provided by the Crown to the sentencing judge appears as appendix 1 to these reasons.

Crown concession

At the commencement of the appeal hearing, senior counsel appearing for the Crown drew attention to an error in the orders for cumulation. As appears from the table above, the sentencing judge imposed a sentence of six months’ imprisonment on count 8 but purported to direct that two years of that sentence be served cumulatively on the sentence imposed on count 10. That period of two years, when added together with…

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 AP

Details

AGLC: R v AP [2009] VSCA 249
Case: [2009] VSCA 249
Decision Date: 23 October 2009

CaseChat Overview and Summary

The appeal before the court involved a man, referred to as AP, who was convicted of multiple serious sexual offences against a young girl. The nature of the crimes included incest, carnal knowledge, gross indecency with a girl under 16, and indecent assault. The appeal centred on the sentence imposed by the lower court and whether it was appropriate given the circumstances.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, and if so, whether the court should exercise its discretion to reduce it. The appeal hinged on a concession by the Crown that there was an error in the sentencing process, specifically in the calculation of the cumulative sentence on one of the counts. The court also needed to consider the significant delay between the first complaint and the interview of the appellant, as well as the appellant's advanced age at the time of sentencing.

The court held that the sentencing error necessitated a reopening of the sentencing discretion. The Crown conceded that the cumulation direction on count 8 exceeded the length of the sentence on that count, which warranted a reassessment of the overall sentence. Additionally, the court noted the substantial delay in handling the case and the appellant's age, which were relevant mitigating factors. Consequently, the court found the original sentence to be manifestly excessive and reduced it. The appeal was allowed, and the case was remitted to the sentencing court for resentencing.

Orders