R v Bullen - [2005] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 58 of 2005

THE QUEEN
	v.
JUSTIN ROBIN BULLEN

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JUDGES:	CALLAWAY, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 August 2005
DATE OF JUDGMENT:	17 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 206

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Criminal law – Sentencing – Taking part in acts of sexual penetration with child under 16 – Counts 1 and 2 rolled up counts – Judge mistaking the facts relating to count 3 – Discretion reopened – Appellant aged 18, and complainant aged 12, at time of offences – Juvenile environment with marked absence of parental supervision – Appellant having since matured and having good prospects of rehabilitation – Desirability of shorter than usual non-parole period - Appellant re-sentenced to two years' imprisonment with non-parole period of eight months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.C. Cain	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr S. Howe	Stella Stuthridge & Associates

CALLAWAY, J.A.:

The appellant, who is now aged 21, pleaded guilty in the County Court at Bendigo to three counts of sexual penetration with a child under the age of 16. The maximum custodial penalty for that offence is 10 years' imprisonment. The appellant had previously appeared in the Magistrates' Court at Kyneton on 30th March 2003 on a charge of being in possession of a prohibited weapon. On that occasion he was sentenced to be released upon entering into an undertaking to be of good behaviour. There were no other previous convictions or findings of guilt, but there had been a subsequent matter, involving burglary and theft, in the same period as the offending with which we are concerned, for which the appellant had received a community-based order.

After hearing a plea for leniency on his behalf and considering a senior youth training centre suitability assessment, the learned judge sentenced the appellant on 25th February 2005 to two years' imprisonment on each of counts 1 and 2 and three years' imprisonment on count 3. Her Honour directed that the sentences on counts 1 and 2 be served concurrently and that one year of those concurrent sentences be served cumulatively upon the sentence imposed on count 3. That made a total effective sentence of four years' imprisonment, in respect of which a non-parole period of 20 months was fixed. The appellant was not sentenced on count 3 as a serious sexual offender, because he was still under 21. I shall assume, notwithstanding R. v. Jennings[1], that, if he is re-sentenced by this Court, the provisions of Part 2A of the Sentencing Act 1991 will now apply. For reasons that will appear later, that is not an assumption adverse to the appellant, except for the notation that will have to be made in the Court's records pursuant to s.6F.
[1][1999] 1 V.R. 352.

Leave to appeal against sentence was granted by Buchanan, J.A. on 29th July 2005. His Honour observed that this was an unusual case, principally…

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 Bullen

Details

AGLC: R v Bullen [2005] VSCA 206
Case: [2005] VSCA 206
Decision Date: 17 August 2005

CaseChat Overview and Summary

The case of R v Bullen involved an appellant, Bullen, who was convicted of taking part in acts of sexual penetration with a child under 16 years of age. The dispute reached the court with Bullen appealing his sentence, arguing that the original sentencing had not adequately taken into account certain mitigating factors. The case was heard in an appellate court in Australia.

The primary legal issues that the court had to decide were whether the original sentence was appropriate given the unique circumstances of the case and whether the judge's error in understanding the facts related to one of the counts warranted a reopening of the sentencing discretion. Specifically, the court needed to assess the impact of the appellant's age at the time of the offences, the environment in which he grew up, and his potential for rehabilitation on the appropriate length of the non-parole period.

The court found that the original sentence was not sufficiently tailored to the mitigating factors present in the case. The appellant, who was 18 at the time of the offences, had grown up in a juvenile environment with a notable lack of parental supervision. The court acknowledged that Bullen had since matured and had good prospects for rehabilitation. Considering these factors, the court deemed it desirable to impose a shorter non-parole period than would typically be expected for such offences. Consequently, the court reopened the sentencing discretion and re-sentenced Bullen to two years' imprisonment with a non-parole period of eight months.

No further orders were made by the court beyond the resentencing of Bullen to the specified terms.

Orders