R v Garratt - [2002] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 227 of 2001

THE QUEEN

BARRY KEITH GARRATT

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JUDGES:	PHILLIPS, C.J., PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2002
DATE OF JUDGMENT:	27 September 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 160

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Criminal Law - Indecent acts with young children under the age of 16 years - Offending involving paedophilic conduct over considerable period - Sentencing discount for voluntary disclosure of otherwise unknown offence - Total effective sentence of 12 years and 6 months’ not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T.P. Burke	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr G. Hughan	Victoria Legal Aid

PHILLIPS, C.J.:

I shall ask my brother Chernov to give the first judgment in this matter.

CHERNOV, J.A.:

On 16 August 2001 the appellant, who is now aged 49, pleaded guilty in the County Court at Melbourne to a presentment containing 13 counts and to one summary offence. Counts 7 to 11 were representative counts[1]. The offences in question were committed between approximately September 1997 and October 1999 in respect of three young girls[2] (who were aged seven and eight years) when at one time or another they stayed at the appellant's home in circumstances where their parents were temporarily unable to look after them. The learned sentencing judge heard a plea in mitigation made on the appellant's behalf and in the course of it received the report of Ian Joblin, a forensic psychologist, who also gave evidence in relation, inter alia, to his diagnosis in respect of the appellant's paedophilia. Also tendered was the report of Dr Alan Bentley, concerning the illness of the appellant's wife during the relevant period. The Crown tendered victim impact statements in respect of the three victims. The appellant admitted five prior convictions dating back to 1971, all of which related to sexual offences, including indecent assault, wilful and obscene exposure and aggravated indecent assault.
[1]The counts are described in the Schedule attached to these reasons. It also sets out in respect of each count, the description of the offence, the relevant victim, the statutory provision creating the offence, the maximum penalty prescribed under it and the sentence imposed by the judge. Also shown in the Schedule are the cumulations that were ordered by his Honour.
[2]In order to preserve the anonymity of the three victims, I have simply called them A, B and C.

On 23 August 2001, his Honour sentenced the appellant as appears in the Schedule to these reasons. The total effective sentence was 12 years and 6 months' imprisonment and his Honour fixed a non-parole period of 9 years. In respect of counts 3 to 13 the appellant was sentenced as a serious offender for the purposes of the Sentencing Act 1991. On 5 September 2001, the appellant filed a notice of application for leave to appeal against sentence on grounds to which I will refer later

and, on 9 November 2001, he…

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 Garratt

Details

AGLC: R v Garratt [2002] VSCA 160
Case: [2002] VSCA 160
Decision Date: 27 September 2002

CaseChat Overview and Summary

The appellant, Garratt, was convicted of a series of serious sexual offences against two young children under the age of 16 years. The case was heard in the Court of Appeal, where Garratt sought to appeal against his sentence. The nature of the crimes, their duration, and the impact on the victims were significant considerations in the case. The appeal focused on the appropriateness of the sentence imposed by the lower court, specifically whether the total effective sentence of 12 years and 6 months was manifestly excessive.

The central legal issue was whether the lower court had erred in its sentencing by not granting a more substantial discount for Garratt's voluntary disclosure of the offences. The court was required to balance the gravity of the crimes with the principles of sentencing, including the impact of voluntary disclosure on the overall punishment. Additionally, the court had to consider the appropriate weight to be given to the discount for voluntary disclosure and whether it was sufficient to mitigate the severity of the sentence.

The Court of Appeal held that the lower court had correctly assessed the gravity of the offences and had given appropriate consideration to the discount for voluntary disclosure. The court found that the total effective sentence of 12 years and 6 months, which included time served on remand, was not manifestly excessive given the circumstances. The court emphasised the heinous nature of the crimes, the prolonged period over which they were committed, and the severe impact on the victims. The appeal was dismissed, and the original sentence was upheld as appropriate.

Orders