R v IRT - [2015] VSC 372

THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 0081 of 2015

THE QUEEN
v
IRT	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2015
DATE OF SENTENCE:	30 July 2015
CASE MAY BE CITED AS:	R v IRT
MEDIUM NEUTRAL CITATION:	[2015] VSC 372

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CRIMINAL LAW - Sentence - Two charges of indecent act with child under 16 - Four charges of lineal incest - Offences committed over two-year period - Sentencing Act 1991 - Amendments apply to one charge of incest only - Plea of guilty - Remorse - Prospects of rehabilitation - Serious sexual offender - Baseline offence falls below the median - Mandatory minimum non-parole period - 6AAA of the Sentencing Act - Total effective sentence 6 years 8 months – Non-parole period 4 years.

CRIMINAL LAW – Sentence – Effect of Sentencing Amendment (Baseline Sentences) Act 2014 - Baseline sentencing – Parliament’s intention – Task of a sentencing judge – Compatibility with provisions – Historic median sentence for incest – Use of historic median cases – Comparative analysis – Instinctive synthesis consistency with baseline provisions – Whether case at, above or below median a question of proof beyond reasonable doubt – “Scaling” of sentence above and below the median – Application to the instant case.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Champion SC and Ms F Dalziel	The Office of Public Prosecutions
For the Accused	Mr T Marsh	Victoria Legal Aid
For the Criminal Bar Association of Victoria (as amicus curiae)	Ms L Taylor QC

HIS HONOUR:

[IRT] on 12 June 2015 you pleaded guilty in this Court to an indictment containing six offences. The first two charges alleged that you committed an indecent act with a child under the age of 16 years. The remaining four charges are that you committed the offence of incest with the same child in two different forms. The victim of your conduct in each case is [D] who is your natural daughter and is the third of nine children born to you and your wife [W].

The Director of Public Prosecutions has filed the indictment in your case with this Court rather than in the County Court because as a result of the date on which you committed the offence which is charge 6, that charge falls to be dealt with under the new regime of sentencing enacted in the Sentencing Amendment (Baseline Sentences) Act 2014. As I understand it, this is the first case to which these new provisions apply. I will from time to time refer to these amendments as the “baseline sentencing provisions”.

The maximum penalty for committing an indecent act with a child under the age of 16 years is 10 years imprisonment. The maximum penalty for incest is 25 years imprisonment. In addition for that latter offence and in relation to charge 6 only, pursuant to s 44(1A) of the Crimes Act 1958 the baseline sentence is 10 years…

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 IRT

Details

AGLC: R v IRT [2015] VSC 372
Case: [2015] VSC 372
Decision Date: 30 July 2015

CaseChat Overview and Summary

The case of R v IRT involved the sentencing of the appellant, who had pleaded guilty to six charges related to sexual offences against a child. The charges included two counts of indecent acts with a child under 16 years and four counts of lineal incest, committed over a two-year period. The appellant was sentenced to a total effective term of 6 years and 8 months, with a non-parole period of 4 years. The appellant appealed against the sentence, arguing that the trial judge had misapplied the baseline sentencing provisions under the Sentencing Act 1991 and the Sentencing Amendment (Baseline Sentences) Act 2014.

The legal issues in the appeal centred around the trial judge's interpretation and application of the baseline sentencing provisions, specifically whether the sentence was consistent with the historic median sentences for similar offences. The appellant argued that the trial judge had incorrectly applied the median sentence for incest by using historic cases that did not fully comply with the legislative provisions. The appellant also contended that the trial judge had failed to consider the appellant's remorse and prospects of rehabilitation, which should have influenced the sentence.

The court reviewed the trial judge's application of the baseline sentencing provisions and the use of historic median sentences. The court noted that while Parliament intended for sentencing judges to be guided by the historic median sentence, the task was not to mechanically apply these figures but to conduct an instinctive synthesis that is consistent with the legislative provisions. The court held that the question of whether a case is at, above, or below the median is not a matter to be decided on the balance of probabilities but rather involves an instinctive synthesis of the relevant factors. The court found that the trial judge had appropriately considered the historic median sentences and had not erred in applying the baseline sentencing provisions. The court also determined that the trial judge had correctly assessed the appellant's remorse and prospects of rehabilitation, and that the sentence was appropriate given the seriousness of the offences.

The court dismissed the appeal, affirming the sentence imposed by the trial judge. The appellant's total effective sentence of 6 years and 8 months, with a non-parole period of 4 years, was upheld. The court emphasised that the sentencing judge's role was to conduct an instinctive synthesis of the relevant factors, which the trial judge had appropriately done in this case. The court also noted that the appellant, despite showing some remorse, remained a serious sexual offender, and the sentence reflected the gravity of the offences committed.

Orders