R v Jac - [2000] VSCA 130

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.155 of 1999

THE QUEEN

J.A.C.

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JUDGES:	PHILLIPS, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 July 2000
DATE OF JUDGMENT:	17 July 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 130

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Criminal law - Sentencing - Incest - Indecent Assault - Guilty pleas - Remorse - Evidence of good character and rehabilitation - General deterrence - Specific deterrence - Procedural fairness - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C.	David Tonkin & Assoc.

PHILLIPS, J.A.:

I will ask Charles, J.A. to deliver the first judgment.

CHARLES, J.A.:

The appellant, who is now aged 55, pleaded guilty on 22 June 1999 in the County Court at Bendigo to a presentment alleging two counts of indecent assault (counts 1 and 2) and two counts of incest (counts 3 and 4). The victim of the two counts of indecent assault was his daughter, KSC. The victim of the two counts of incest was a second daughter, LMW. Counts 3 and 4 were both representative counts.

The plea was heard on 22 June 1999. The appellant had no prior convictions. A victim impact statement made by KSC on 10 June 1999 and one made by LMW on 21 June 1999 were both received in evidence, and the victims were not cross-examined on their statements. A report made by Mr Jeffrey Cummins, a forensic psychologist, dated 22 February 1999 was tendered on behalf of the appellant, as also were a number of references as to his character. During the plea, seven witnesses were called to give oral evidence of the appellant's good character, and I shall turn to what they had to say later. Counsel for the appellant urged the sentencing judge to impose non-custodial sentences on the first two counts on the presentment so as to avoid the appellant being sentenced as a serious sexual offender on the third and fourth counts. The maximum penalty for indecent assault at the relevant time was five years' imprisonment and for incest was 20 years' imprisonment.

On 25 June 1999 the judge sentenced the appellant on count 1 to 12 months', on count 2 to 12 months', on count 3 to three years', and on count 4 to five years' imprisonment respectively. His Honour ordered that the sentences on counts 1 and 2 be served concurrently inter se and the sentences on counts 3 and 4 be similarly served concurrently. The sentences on counts 1 and 2 were made cumulative on the sentences on counts 3 and 4. The total effective sentence was therefore six years' imprisonment and his Honour fixed a non-parole period of four years. The appellant was declared a serious sexual offender under s.6B of the Sentencing Act 1991.

The appellant now appeals on a large number of grounds to which I shall turn shortly. On 23 March 2000…

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 Jac

Details

AGLC: R v Jac [2000] VSCA 130
Case: [2000] VSCA 130
Decision Date: 17 July 2000

CaseChat Overview and Summary

The case of R v Jac involved the appellant, who was convicted of two counts of indecent assault against his two minor daughters. The matter was heard in the Supreme Court of Victoria, where the appellant appealed against his sentence, arguing that it was manifestly excessive. The appellant had pleaded guilty to the charges, which had arisen from incidents of sexual abuse against his daughters over a period of time. The court was tasked with determining the appropriate sentence, considering factors such as the nature of the offences, the appellant's remorse, and evidence of his good character and rehabilitation efforts.

The central legal issues in the case included the assessment of the appropriate sentence for the offences of incest and indecent assault, the weight to be given to the appellant's guilty pleas, the significance of his remorse, and the relevance of evidence regarding his good character and rehabilitation. The court was also required to consider the principles of general and specific deterrence in determining the sentence, as well as the need to ensure procedural fairness in the sentencing process.

In delivering the judgment, the court found that the sentence imposed was not manifestly excessive. The court acknowledged the appellant's guilty pleas and the remorse he had shown, but emphasised that these factors alone were not sufficient to justify a significantly reduced sentence. The court also considered the gravity of the offences, the impact on the victims, and the need for general and specific deterrence. Ultimately, the court concluded that the sentence was appropriate and did not breach any principles of procedural fairness. The appeal was therefore dismissed.

No further orders were made by the court.

Orders