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R v Better

R v Better

Case [2003] VSCA 71 4 June 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 270 of 2002

THE QUEEN
	v.
MICHAEL BETTER

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2003
DATE OF JUDGMENT:	4 June 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 71

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Criminal law - Sentencing - Sexual offences - Incorrect maximum sentence assumed by the sentencing judge - Sentencing discretion reopened - Offences committed 25 years ago when appellant very young - Partially suspended sentence appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Randles Cooper & Co. Pty. Ltd.

CHARLES, J.A.:

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

BUCHANAN, J.A.:

The appellant was arraigned and pleaded guilty to a presentment containing five counts of indecent assault on a girl under the age of 16 years (counts 1, 6, 7, 8 and 11), three counts of gross indecency in the presence of a girl under the age of 16 years (counts 2, 9 and 10) and four counts of carnal knowledge of a girl under the age of ten years (counts 3, 4, 5 and 12).

The appellant was sentenced to a term of two years' imprisonment on each of the counts of indecent assault and gross indecency, and to a term of four years' imprisonment on each of the counts of carnal knowledge, except for count 4, on which a sentence of two years’ imprisonment was imposed. The sentencing judge directed that the sentences imposed on counts 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11 be served concurrently with the sentence imposed on count 3 and that three years of the sentence imposed on count 12 be served concurrently with the sentence imposed on count 3, producing a total effective sentence of five years' imprisonment. The sentencing judge fixed a term of 18 months before the appellant was to be eligible for parole. The appellant was declared and sentenced as a serious sexual offender in respect of counts 3 to 12.

The appellant has appealed against the sentence on a number of grounds. It is not necessary to consider more than one of them, for there was clearly an error that vitiated the exercise of the sentencing discretion.

The sentencing judge was informed by the prosecutor that the maximum sentence for the crime of gross indecency was three years' imprisonment. The information was incorrect. The maximum sentence was two years' imprisonment. The sentencing judge imposed a sentence of two years' imprisonment on each of the three counts of gross indecency. Those sentences were clearly wrong. From the imposition of the maximum sentence it is evident that no mitigating factor had any effect. There were several mitigating factors which were significant: the appellant’s age at the time the offences were committed, his lack of prior convictions, the delay and the appellant’s rehabilitation since the offending, his admissions, remorse and early pleas of guilty.

When the…

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.

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Details

AGLC: R v Better [2003] VSCA 71
Case: [2003] VSCA 71
Decision Date: 4 June 2003

CaseChat Overview and Summary

The appellant, Better, appealed against his conviction and sentence for sexual offences committed 25 years ago when he was very young. The Supreme Court of Victoria heard the appeal, with the Court of Appeal having jurisdiction to review the sentence imposed by the trial judge. The key issue before the Court was whether the trial judge erred in sentencing by assuming an incorrect maximum penalty for the offences committed. Additionally, the Court had to consider whether, given the age of the appellant at the time of the offences and the length of time since they were committed, a partially suspended sentence was appropriate.

The Court found that the trial judge had indeed erred in assuming an incorrect maximum penalty for the offences, which led to an inappropriate sentence being imposed. The Court of Appeal reopened the sentencing discretion, taking into account the appellant's age at the time of the offences and the significant passage of time since they were committed. It was determined that a partially suspended sentence was suitable in the circumstances, reflecting both the seriousness of the offences and the appellant's young age at the time of their commission. The Court emphasised the importance of proportionality and individualised sentencing in such cases, and the need to balance the interests of justice with the need for rehabilitation and reintegration of the offender into society.

The Court of Appeal quashed the original sentence and ordered a new sentencing hearing, directing the sentencing judge to consider the appropriate penalty for the offences, taking into account the correct maximum penalty and the appellant's age and circumstances at the time of the offences. The Court also directed that a partially suspended sentence be considered, given the length of time since the offences were committed and the appellant's age at the time. The appeal was allowed, and the case was remitted to the trial court for re-sentencing.

Orders