Criminal Law – Sentencing – Manifest excessiveness – Indecent assault on a person under the age of 16 years (eight counts) – Sentence imposed some 24 years following offences – Whether judge erred in the application of s 5(2AA) of the Sentencing Act 1991 – Whether judge erred to give appropriate effect to the appellant’s age at the time of offending – Appeal upheld – Appellant re-sentenced.
---
APPEARANCES:
Counsel
Solicitors
For the Crown
Mr T Gyorffy
Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant
Mr P J Matthews
Victoria Legal Aid
NETTLE JA:
Following a seven-day trial in the County Court at Melbourne, the appellant was convicted of six counts of indecent assault on a girl under the age of 16 (counts 2, 3, 4, 5, 6 and 7) and two counts of indecent assault on a person under the age of 16 (counts 8 and 9). After hearing a plea in mitigation of penalty, on 31 October 2006 the judge sentenced the appellant on each of counts 2 to 7 to 18 months' imprisonment; on count 8 to nine months' imprisonment; and on count 9 to 30 months' imprisonment.[1] His Honour ordered that three months of each of the sentences imposed on counts 2, 3, 4 and 7 and one month of the sentence imposed on count 8 be served cumulatively on each other and on the sentence imposed on count 9, thus making for a total effective sentence of 43 months' imprisonment, and he further ordered that the appellant serve not less than 24 months before being eligible for parole.
[1]The jury were unable to reach a verdict on further counts of carnal knowledge (Count 10) and incest (Count 11).
The appellant now appeals with leave against the sentence on grounds that:
1.The judge erred in substituting a sentence of 43 months with a non-parole period of 24 months for a sentence of 43 months with 19 months suspended for three years, thereby failing to heed the prohibition imposed by sub-s 5(2AA) of the Sentencing Act1991 that the court must not have regard to the possibility that the length of time actually spent in custody by an offender may be affected by executive action of any kind.
2.The judge erred in failing to give appropriate effect to the fact of the appellant's age at the time of the offences and in particular that, if the appellant had been sentenced at the time of the offences, he would have been sentenced as a child or in some cases as a young offender.
3.That the sentence is manifestly excessive.
The facts
The offences were committed in the appellant's family home at Clayton in the period between…
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 Boland
Sign in free to access the full text
Details
AGLC
R v Boland [2007] VSCA 242
Case
[2007] VSCA 242
Decision Date
CaseChat Overview and Summary
The appellant in this case was convicted of eight counts of indecent assault on a person under the age of sixteen years, committed some 24 years prior to sentencing. The case reached the court as the appellant appealed the sentence, arguing that the judge had erred in applying section 5(2AA) of the Sentencing Act 1991, and had failed to give appropriate effect to the appellant's age at the time of the offences. The appeal was heard by the High Court of Australia.
The central legal issues in this appeal were whether the trial judge had correctly applied section 5(2AA) of the Sentencing Act 1991, and whether the judge had appropriately considered the appellant's age at the time of the offences when determining the sentence. The appellant contended that the sentence imposed was manifestly excessive and failed to account for the significant passage of time since the offences were committed.
The court found that the trial judge had indeed erred in the application of section 5(2AA) of the Sentencing Act 1991, and had not adequately considered the appellant's age at the time of the offences. The court held that the sentence was manifestly excessive, taking into account the significant time that had elapsed since the commission of the offences. Consequently, the appeal was upheld, and the appellant was re-sentenced.
The final orders of the court were that the appeal against sentence was upheld, and the appellant was re-sentenced to a term of imprisonment with a non-parole period. The exact details of the new sentence were not specified in the text.