R v Garner - [2000] VSCA 85

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 87 of 99

THE QUEEN

v.

ROBERT GARNER

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JUDGES:

WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.

WHERE HELD:

MELBOURNE

DATE OF HEARING:

27 April 2000

DATE OF JUDGMENT:

27 April 2000

MEDIUM NEUTRAL CITATION:

[2000] VSCA 85

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Criminal law – Sentencing – Sexual offences – Five complainants – Representative counts – Previous convictions – Low to moderate risk of re-offending – Cumulation and concurrency – Sentence of six-and-a-half years' imprisonment with non-parole period of five years not manifestly excessive.
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APPEARANCES:
Counsel Solicitors

For the Crown
Mrs C. Quinn P.C. Wood, Solicitor for Public Prosecutions

For the Applicant

Mr O.P. Holdenson, Q.C.

Stephen B. Shipp

WINNEKE, P.:
1 I will invite Callaway, J.A. to give the first judgment in this application.

CALLAWAY, J.A.:
2 The applicant, who is now aged 57, pleaded guilty in the County Court to a presentment containing 11 counts charging offences committed between January 1985 and November 1997 and to a summary offence committed in 1998. The latter was dealt with pursuant to s.359AA of the Crimes Act 1958. He admitted five previous convictions from an appearance in the County Court in January 1981 in respect of which he was released on a bond to be of good behaviour for three years. It will be observed that the offending with which we are concerned began after the expiration of that period. The learned judge heard a plea for leniency on behalf of the applicant and took time for consideration. On 26 April 1999 he sentenced the applicant to a total effective sentence of six-and-a-half years' imprisonment with a non-parole period of five years.

3 Counts 1 and 2 charged indecent assaults committed against a boy under the age of 16 whom I shall call "L". They were both representative counts in the sense explained in R. v. S.B.L.[1] Counts 3, 4, 5 and 6 charged taking part in an act of sexual penetration with boys above the age of 10 but under the age of 16, the act of sexual penetration in each case consisting of the complainant's introducing his penis into the applicant's mouth. Counts 3, 4 and 6 related to a complainant whom I shall call "M" and count 5 to a complainant whom I shall call "A". Counts 3, 4 and 5 were also representative counts. Count 7 charged the wilful commission of an indecent act with A. Counts 8 and 9 charged the wilful commission of indecent acts with another boy under 16 whom I shall call "H". Count 10 alleged that the applicant invited H and a boy under the age of 18, whom I shall call "E", to be concerned with the making or production of child pornography and count 11 charged another invitation to E to be so concerned. The summary offence was of knowingly possessing photographic slides, photographs and video cassette tapes depicting minors in an indecent sexual manner contrary to s.70(1) of the Crimes Act.…

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 Garner

Details

AGLC: R v Garner [2000] VSCA 85
Case: [2000] VSCA 85
Decision Date: 27 April 2000

CaseChat Overview and Summary

The case of R v Garner involved the defendant, who faced charges related to sexual offences involving five complainants. The matter was brought before the court for sentencing, with the prosecution seeking an appropriate punishment. The court was required to consider the nature and seriousness of the offences, the number of victims, and the defendant's previous criminal history, which included convictions for similar offences. The legal issues centred around determining the appropriate sentence, taking into account the principles of cumulative and concurrent sentencing, and assessing the risk of re-offending.

The court addressed the legal issues by examining the severity of the offences and the defendant's history of criminal conduct. It was noted that the offences were of a serious nature and had a significant impact on the victims. However, the court also considered the defendant's low to moderate risk of re-offending, which was supported by expert evidence. The court found that a sentence of six-and-a-half years' imprisonment with a non-parole period of five years was appropriate, taking into account the need for deterrence, denunciation, and the protection of the community. The court held that the sentence was not manifestly excessive, as it balanced the need to punish the defendant with the risk of re-offending.

In conclusion, the court imposed a sentence of six-and-a-half years' imprisonment with a non-parole period of five years. The court found that this sentence was appropriate given the nature and seriousness of the offences, the number of victims, and the defendant's previous criminal history. The court also considered the risk of re-offending and the principles of cumulative and concurrent sentencing. The final orders included the imposition of the aforementioned sentence, with the defendant to serve a non-parole period of five years.

Orders