R v BF

Case [2007] VSCA 217 2 November 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 225 of 2006

THE QUEEN
	v
BF

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JUDGES:	MAXWELL P, ASHLEY and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2007 and 11 October 2007
DATE OF JUDGMENT:	2 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 217	1st Revision, 21 December 2007 [67]-[69]

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CRIMINAL LAW – Sentencing – Rape, threat to kill, indecent act with a child under 16 (two counts) and intentionally causing serious injury – Breach of parole for interstate offences – Sentences ranged from 4 to 13 years’ imprisonment with a total effective sentence of 20 years’ imprisonment – Whether sentence(s) manifestly excessive – Whether sentencing judge should have given weight to the fact that the main evidence of penetration was appellant’s admission – Appeal allowed on the basis that 13 year sentence for rape and total effective sentence were manifestly excessive – Re-sentenced to 15 years’ imprisonment – Effect on sentence of interstate offences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr L C Carter	Robert Stary & Associates

MAXWELL P
ASHLEY JA
NEAVE JA:

The appellant, aged 38, pleaded guilty to one count of threat to kill (a representative count), one count of rape, two counts of an indecent act with a child under 16, and one count of intentionally causing serious injury. The victim of the offences was the appellant’s niece, who was aged 14 at the time of the offending.

The appellant was sentenced to the following terms of imprisonment:

·Count 1: Threats to kill (a representative count) — 5 years.
·Count 2: Rape — 13 years.
·Count 3: Indecent act with a child under 16 — 4 years.
·Count 4: Indecent act with a child under 16 — 5 years.
·Count 5: Intentionally causing serious injury — 5 years.

The judge below ordered that two years of the sentence imposed upon Count 1, one year of the sentence imposed on Count 3, two years of the sentence imposed upon Count 4 and two years of the sentence imposed on Count 5, be served cumulatively upon each other and upon the sentence imposed upon Count 2. This amounted to a total effective sentence of 20 years’ imprisonment. His Honour directed that the appellant serve a minimum of 16 years before becoming eligible for parole. The appellant appealed, by leave, against that sentence.

The Facts

In 1999, the appellant pleaded guilty in the District Court in Queensland to counts of assault with intent to rape, indecent assault involving penetration and anal rape. He was sentenced to eight years’ imprisonment, with a minimum non-parole period of 6.4 years (’the Queensland sentence’).[1] After serving part of that term, the appellant was transferred to Victoria to serve the remainder of the Queensland sentence. When he was paroled, in mid-August 2005, he went to live with his sister and her two daughters in Melbourne for a few months. Some time after he had…

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 BF [2007] VSCA 217
Case: [2007] VSCA 217
Decision Date: 2 November 2007

CaseChat Overview and Summary

In the case of R v BF, the appellant faced a series of serious criminal charges including rape, making a threat to kill, and indecent acts with a child under 16, among others. The case was heard in the court of appeal, where the appellant contested the severity of the sentences imposed on him. The original sentences ranged from 4 to 13 years' imprisonment, resulting in a total effective sentence of 20 years. The appellant argued that these sentences were manifestly excessive, particularly given that the primary evidence of the rape charge was his own admission.

The legal issues before the court were whether the sentences imposed were manifestly excessive and whether the sentencing judge should have given more weight to the appellant's admission as the primary evidence of penetration. The court had to consider the severity and nature of the offences, the appellant's criminal history, and the principle of proportionality in sentencing. The appeal hinged on whether the total effective sentence and the specific 13-year sentence for rape were disproportionate to the crimes committed.

The court found that the total effective sentence of 20 years and the 13-year sentence for rape were indeed manifestly excessive. The court reasoned that the sentencing judge had not adequately considered the appellant's admission as the main evidence of penetration, which should have influenced the weight given to that particular charge. The court also highlighted the need for proportionality in sentencing, ensuring that the punishment fits the crime. Consequently, the appeal was allowed, and the appellant was re-sentenced to 15 years’ imprisonment, taking into account the effect of the interstate offences on the sentence.

Orders