R v Hunter - [2006] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 155 of 2005
	v.
NEVILLE THOMAS HUNTER

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JUDGES:	CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2006
DATE OF JUDGMENT:	14 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 9

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CRIMINAL LAW – Sentencing – Agreed representative counts of buggery (1) and indecently assaulting a male under the age of 16 years (4) – Possession of child pornography – Whether trial judge correctly applied principles relevant to representative counts – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr F.G. Meredith	Lygon St Legal Service

CHARLES, J.A.:
VINCENT, J.A.:

Having read the reasons for judgment prepared by Mandie, A.J.A., we agree that this appeal should be dismissed; and, subject to the following additional comments, for the reasons his Honour gives.

When an offender is sentenced on a representative count, the offender must not, by a loading of the sentence, be punished for the represented offences, as Batt, J.A. explained in R. v. S.B.L[1]. The offender is to be sentenced for the offence to which he has pleaded guilty, although it cannot be said to have been an isolated offence, and the fact that the offence is representative has the consequence that the offence may be seen in the wider context of the represented offences. The position, is, of course, different with rolled-up counts[2].
[1][1991] 1 V.R. 706 at 725-726.
[2]See R. v. Jones [2004] VSCA 68 at [13].

The passages from the judge’s sentencing reasons which were said to show error in this respect are set out in para.[32] of the judgment of Mandie, A.J.A. There are comments contained in these passages which might be thought to indicate error, including for example the last sentence in the first paragraph quoted, which said “The sentence for a representative count is to reflect the totality of the criminal conduct over the period presented”.

The judge had, however, been referred to, and discussed during the plea and in sentencing reasons, the judgment in S.B.L. At the outset of the passages quoted, her Honour clearly set out the basic principle, which was that the appellant was “to be sentenced, of course, only in relation to the counts to which you have pleaded guilty before me.” When regard is also had to the actual sentences imposed, it becomes apparent that her Honour well understood and applied the correct approach to a representative count. Had her Honour intended to sentence the appellant, for example on count 2, for the totality of the criminal conduct involved,

which in the case of count 2 included at least seven acts of buggery, the sentences imposed must inevitably have been much longer.

It follows that there is no reason to suppose that the judge erred in taking into account the representative nature of the offences found in counts 1-5.

MANDIE, A.J.A.:

The appellant, Neville Thomas Hunter, was…

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 Hunter

Details

AGLC: R v Hunter [2006] VSCA 9
Case: [2006] VSCA 9
Decision Date: 14 February 2006

CaseChat Overview and Summary

The respondent, Hunter, was convicted in the County Court of Victoria for five offences: one count of buggery, four counts of indecently assaulting a male under the age of 16 years, and possession of child pornography. The trial judge imposed a total sentence of 16 years imprisonment, with a non-parole period of 10 years. Hunter appealed the sentence on the basis that the trial judge failed to correctly apply the principles relevant to representative counts. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issue before the court was whether the trial judge correctly applied the principles relevant to representative counts in sentencing Hunter. Hunter argued that the trial judge erred in failing to properly consider the relationship between the counts of indecent assault and the count of buggery. The respondent contended that the trial judge should have treated the counts of indecent assault as a single representative count rather than imposing separate sentences for each count. The respondent also argued that the trial judge failed to adequately consider the totality principle, which requires the court to consider the overall punishment in light of the whole offending rather than focusing on individual offences.

The Court of Appeal held that the trial judge correctly applied the principles relevant to representative counts in sentencing Hunter. The court found that the trial judge had considered the relationship between the counts of indecent assault and the count of buggery, and had appropriately exercised their discretion in imposing separate sentences for each count. The court also found that the trial judge had adequately considered the totality principle and had imposed a sentence that was proportionate to the seriousness of the offending. The appeal was dismissed, and the original sentence of 16 years imprisonment, with a non-parole period of 10 years, was upheld.

Orders