R v JG - [2005] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 190 of 2004

THE QUEEN

J.G.

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JUDGES:	WARREN, C.J. and BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2005
DATE OF JUDGMENT:	17 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 74

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Criminal Law - Sentencing - Indecent assault of child aged under 16 years - Victim appellant's stepdaughter - Offences committed over seven-year period when victim aged eight to 14 years - Complaint made 15 years after offending ceased - Remorse - No threat to community - No prior convictions - Appellant chronically ill, aged 62 - Sentence of four years' imprisonment in respect of representative count manifestly excessive - Appeal allowed, sentences set aside and appellant re-sentenced - Sentences to be cumulated on most serious offence - Serious sexual offender - Sentencing Act 1991, s.6A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Buller McLeod

WARREN, C.J.:

I will invite Chernov, J.A. to state his reasons first.

CHERNOV, J.A.:

The appellant, who is now aged 62 years, pleaded guilty on 19 July 2004 to five counts of indecently assaulting his stepdaughter between January 1979 and March 1986, at which time she was aged variously between eight and 14 years. The maximum penalty prescribed by the Crimes Act 1958 for indecent assault of a child aged under 16 years was five years' imprisonment. The appellant has no prior convictions. On 27 July 2004, following a plea in mitigation made on his behalf, the learned sentencing judge sentenced the appellant to a total effective sentence of seven years' imprisonment and directed that he serve a minimum term of four years' imprisonment before becoming eligible for parole. More particularly, the following custodial sentences were imposed:

Count 1 -  1 year
Count 2 (a representative count) -            4 years
Count 3 -  1 year
Count 4 -   2 years
Count 5 -   1 year

His Honour recognised that the appellant fell to be sentenced as a serious sexual offender pursuant to s.6A of the Sentencing Act 1991 in respect of counts 3, 4 and 5 and, in the course of imposing the sentence on each of those counts and count 2, his Honour ordered that part or the whole of the sentence, as the case may be, be cumulated. But he did not say, in terms, on which count such cumulation was to take place. As I will explain later, such cumulation orders are inconsistent with this Court's directions as to the proper method of cumulating sentences. Be that as it may, what his Honour relevantly said on this issue was this. After sentencing the appellant on count 2, his Honour added " ... and I order that three years of that sentence is to be served cumulatively on all other sentences imposed today." His Honour also ordered that each of the sentences imposed on counts 3 and 5 was to be…

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 JG

Details

AGLC: R v JG [2005] VSCA 74
Case: [2005] VSCA 74
Decision Date: 17 March 2005

CaseChat Overview and Summary

The case of R v JG involved an appellant who was convicted of multiple counts of indecent assault against his stepdaughter. The assaults occurred over a period of seven years, commencing when the victim was eight years old and concluding when she was fourteen. A complaint was made by the victim fifteen years after the cessation of the offending. The appellant, who was 62 years old at the time of sentencing and suffering from chronic illness, had no prior convictions and demonstrated remorse. The court was tasked with determining the appropriate sentence for the appellant, given the nature and duration of the offences, the age of the victim at the time of the offences, and the appellant's health and lack of prior criminal history.

The legal issues before the court were whether the sentence of four years' imprisonment for the most serious offence was manifestly excessive and if the sentences should be cumulated or run concurrently. The court had to balance the gravity of the offences against the appellant's personal circumstances and the absence of a threat to the community. The appellant's age and chronic illness were considered mitigating factors, as was his remorse, although the court also recognised the appellant as a serious sexual offender. The court was also required to consider the appropriate application of the Sentencing Act 1991, particularly section 6A, which addresses the need to ensure that the sentence reflects the seriousness of the offence and the need for denunciation and deterrence.

The court found that the original sentence was indeed manifestly excessive in light of the appellant's personal circumstances and the absence of a significant risk to the community. The court determined that the sentences should be cumulated on the most serious offence, which was a count of indecent assault. The appeal was allowed, and the sentences were set aside. The appellant was re-sentenced to a term of imprisonment that appropriately reflected the seriousness of the offences while also considering the mitigating factors. The court ordered that the sentences be cumulated on the most serious offence, thereby ensuring the sentence was proportionate and just.

Orders