R v Bowen - [2008] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 87 of 2007

THE QUEEN
	v
DAVID ALAN BOWEN

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JUDGES:	BUCHANAN, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 February 2008
DATE OF JUDGMENT:	28 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 33

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Criminal law – Sentencing – Gross indecency – Indecent assault – Offences committed over 40 years ago against two separate school age victims – Appellant acquainted with each victim's family – Sentencing judge erred in treating two counts on presentment as sexual offences encompassed by Part 2A of Sentencing Act 1991 – Sentencing discretion re-opened – Question of applicable maximum penalties in circumstances where term of imprisonment subsequently reduced by legislature – Application of s 114(2) of Sentencing Act 1991 – R v Ronen (2006) 161 A Crim R 300 – Manifest excess – No prior convictions – Delay – Appellant’s professional career ruined – Appellant and second victim commenced long term adult relationship – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M J Croucher	Geoffrey Tobin Pty

BUCHANAN JA:

I will ask Vincent JA to deliver the first judgment.

VINCENT JA:

The appellant pleaded guilty in the County Court at Melbourne, on 14 March 2007, to seven counts of gross indecency (counts 1, 3, 7, 11, 12, 14 and 17) and 11 counts of indecent assault (counts 2, 4, 5, 6, 8, 9, 10, 13, 15 ,16 and 18).

He had no prior convictions.

After hearing a plea in mitigation of penalty, the sentencing judge, on 2 April 2007, imposed the following terms of imprisonment:

On each of
counts 1 and 2          -          15 months’ imprisonment;
On each of counts
3, 4, 6, 7 and 8          -          three months’ imprisonment;
On count 5                -          six months’ imprisonment;
           On each of counts
9, 10, 11, 12, 15, 16
           17 and 18                  -          eight months’ imprisonment;
On each of counts
13 and 14                  -          18 months’ imprisonment.

His Honour directed that three months of the sentences imposed on each of counts 1 and 2, one month of that imposed on each of counts 5, 9, 15 and 18 and four months of the sentence on count 14 be served cumulatively upon the sentence handed down on count 13. This created a total effective sentence of two years and eight months’ imprisonment in respect of which a non-parole period of 20 months was fixed.

His Honour further declared that by reason of the appellant's convictions on counts 13 onwards, he was sentenced as a serious sexual offender.

It is clear, however, that counts 14 and 17, each of which related to the commission of an offence contrary to s 69(4) of the Crimes Act, are not sexual offences encompassed by the provisions of Part 2A of the Sentencing Act 1991 which relate to serious sexual offenders, and his Honour fell into error in so…

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 Bowen

Details

AGLC: R v Bowen [2008] VSCA 33
Case: [2008] VSCA 33
Decision Date: 28 February 2008

CaseChat Overview and Summary

In the matter of R v Bowen, the appellant faced sentencing for offences of gross indecency and indecent assault against two school age victims over four decades ago. The appellant, who had been acquainted with each victim’s family, was convicted on two counts. The sentencing judge classified the counts as sexual offences under Part 2A of the Sentencing Act 1991, but this was contested on appeal. The key issues before the court were whether the sentencing judge had correctly identified the nature of the offences and the applicable maximum penalties, particularly in light of legislative amendments reducing the term of imprisonment for such offences.

The court examined the legal framework governing the sentencing of historical sexual offences and the applicability of Part 2A of the Sentencing Act 1991. It considered the legislative changes reducing the maximum penalties and the relevance of section 114(2) of the Act, which allows for the reopening of sentencing discretion in certain circumstances. The court also evaluated whether the original sentence was manifestly excessive and whether the delay and the appellant’s professional and personal circumstances warranted a re-sentencing.

Upon review, the court found that the sentencing judge had erred in classifying the counts as sexual offences under Part 2A of the Sentencing Act 1991. Given the legislative amendments and the appellant’s lack of prior convictions, the court determined that the original sentence was manifestly excessive. The appeal was allowed, and the appellant was re-sentenced, taking into account the delay, the absence of prior convictions, and the appellant’s ruined professional career and subsequent long-term relationship with one of the victims.

Orders