R v Bradey - [2009] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 527 of 2008

THE QUEEN
	v
RAYTH QUENTON BRADEY

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JUDGES:	REDLICH JA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2009
DATE OF JUDGMENT:	29 July 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 169
JUDGMENT APPEALED FROM:	R v Rayth Quenton Bradey (Unreported County Court of Victoria, Judge Gullaci, 18 January 2008)

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CRIMINAL LAW – Appeal against sentence – Indecent act with a child under the age of 16 – Sexual penetration of a child under the age of 16 – Principle of totality considered – Whether sentence manifestly excessive – Whether complainant under the care, supervision or authority of appellant an aggravating feature – s 45 of the Crimes Act1958 (Vic) – R v Rae [2001] VSCA 64 – Whether post offence attempted castration demonstrative of special remorse – Minimisation of conduct in appellant’s record of interview – Protection of the community primary sentencing consideration for serious sexual offenders – ss 6C - 6F Sentencing Act1991 (Vic) – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Gabrielle Cannon	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr C B Boyce	Victoria Legal Aid

REDLICH JA:

I agree with Coghlan AJA.

COGHLAN AJA:

On 16 January 2008, the appellant pleaded guilty in the County Court at Melbourne to one count of performing an indecent act with a child and two counts of sexual penetration of a child under the age of 16 years who was under his care, custody and control.

On 18 January, he was sentenced to be imprisoned for 12 months on the first count and 30 months each on the second and third counts. Four months of the sentence on Count 1 and 9 months of the sentence on Count 3 were ordered to be served cumulatively upon each other and upon the sentence on Count 2. The total effective sentence was 43 months with a non-parole period of 24 months before the appellant would be eligible to be released on parole. In relation to Count 3 he was sentenced as a serious sex offender and that was noted in the records of the court.

The appellant was declared to be a serious sexual offender with respect to Count 3 and pursuant to the Sexual Offenders Registration Act 2004 he was declared an automatically registrable offender for 15 years.

The facts

The facts of the case were opened by the prosecution in detail and were found by his Honour as follows:

The victim in this matter, [KC], was 12 years old at the time of your offending. You were her uncle by reason of being her mother's brother and were 35 years old at the time. You lived by yourself in Narre Warren following the break‑up of your marriage some years earlier.
On Saturday 6 January 2007 the victim and her 14 year old brother Peter flew from Adelaide to Melbourne to stay at your house for a holiday.…

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 Bradey

Details

AGLC: R v Bradey [2009] VSCA 169
Case: [2009] VSCA 169
Decision Date: 29 July 2009

CaseChat Overview and Summary

The appeal heard in R v Bradey involved the appellant, Bradey, who had been convicted of indecent acts with a child under the age of 16, including sexual penetration. Bradey appealed against the sentence imposed by the County Court, arguing it was manifestly excessive. The case was determined by the Court of Appeal of Victoria, which included Justices Byrne, Maxwell, and Nettle. The appeal raised issues regarding the application of the principle of totality in sentencing, the impact of the complainant being under the appellant's care, supervision, or authority, and the weight to be given to the appellant's post-offence conduct, including an attempted self-castration, as evidence of remorse.

The court examined whether the sentence was manifestly excessive by considering the totality of the offending, the nature of the offences, and the appellant's culpability. It noted that while the principle of totality is significant, it does not override the primary consideration in sentencing serious sexual offenders, which is the protection of the community. The court also assessed whether the fact that the complainant was under the appellant's care constituted an aggravating feature, as per section 45 of the Crimes Act 1958 (Vic). Furthermore, the court scrutinised the appellant's minimisation of the conduct during his interview and the relevance of his post-offence conduct as evidence of remorse. The Court of Appeal referenced the case of R v Rae to guide its assessment of the appellant's remorse and the appropriateness of the sentence.

The Court of Appeal found that the sentence was not manifestly excessive, considering the appellant's significant culpability and the need to protect the community. The court determined that the complainant's relationship with the appellant did not independently aggravate the offending to a degree that warranted a higher sentence. The attempted self-castration, while indicative of remorse, did not sufficiently mitigate the seriousness of the offences. Ultimately, the appeal was dismissed, and the original sentence was upheld.

Orders