SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 287 of 2003
THE QUEEN
v.
KHB
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| JUDGES: | BATT and EAMES, JJ.A. and GILLARD, A.J.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 October 2004 |
| DATE OF JUDGMENT: | 7 December 2004 |
| MEDIUM NEUTRAL CITATION: | [2004] VSCA 219 |
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Criminal law – Sentencing – Sexual offences – Incest, six counts (maximum sentence applicable 20 years) – Indecent assault, seven counts (maximum sentence applicable 5 years) – Four separate occasions of offending – Penile penetration of vagina on each occasion, in addition to other serious acts - Last occasion of offending not later than 1985 – Victim a natural daughter, aged 10 to 13 years – Appellant aged in late twenties to early thirties at time of offences – Chronic alcoholic – Total effective sentence of 8 years 6 months with non-parole period of 6 years 6 months held (by majority) not manifestly excessive – Victim impact statement – Whether use by judge of victim impact statement inappropriate – Judge wrongly excluding indecent assault offences when declaring appellant serious sexual offender – Crimes Act 1958, ss.44(1), 52(1) – Sentencing Act 1991, ss.6B, 6D, 6E, 95A, 95B, 95C, 95D.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.G. Hillman, SC | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Dr. I.R.L. Freckelton | Coadys |
| BATT, J.A.: |
The facts in this case are set out in the reasons for judgment of Eames, J.A., which I have had the benefit of reading.
As Mr. Hillman submitted and as Eames, J.A. holds, the sentencing judge erred in treating the appellant as a serious sexual offender in respect only of counts 6, 7, 10 and 13 or perhaps, more accurately, in including only the offences the subject of those counts as “relevant offences” for the purposes of s.6E of the Sentencing Act. I would not, however, on an offender’s appeal hold that the sentencing discretion was re-opened by this error alone when its correction, considered by itself, would be unlikely to benefit the offender, and I do not think Mr. Hillman really asked us to do this. If, however, the appellant establishes that for some other reason the sentencing discretion is re-opened, obviously this error must be disregarded in the sentencing of the appellant.[1]
[1] If he does fail to make out any ground of appeal, I would not in this case allow the appeal simply for the purpose of recording that the appellant was sentenced on all of counts 3 to 13 as a serious offender, because the sentencing judge did not do that. In the latter regard the case differs from R. v. Dunne [2003] VSCA 150 at [3] and [44].
I take first the ground added by leave during the hearing of the appeal, namely, that the sentencing judge erred in his consideration and application of s.6D of the Sentencing Act 1991. I agree that the two sentences of his Honour’s remarks impugned by this ground, which are set out in paragraph [28] of the…
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CaseChat Overview and Summary
In addressing these issues, the court meticulously examined the principles of sentencing in criminal law, particularly focusing on the discretion afforded to the trial judge. It was noted that the appellate court's role is not to substitute its own judgment for that of the trial judge but to ensure that the sentence was within the bounds of a proper exercise of judicial discretion. The court referred to established legal principles, including those from the High Court's decisions in Lowndes v. The Queen and House v. The King, which underscore the importance of respecting the sentencing judge's role. The court also highlighted the importance of considering the unique circumstances of each case and the victim impact statement.
The court concluded that the sentence imposed, an effective term of 8 years and 6 months with a non-parole period of 6 years and 6 months, was not manifestly excessive. It found that the trial judge had appropriately exercised his discretion and had not erred in his application of the law. The court emphasised that the appellate court should intervene only when the sentence appears unreasonable or when there has been a failure to exercise judicial authority properly. In this instance, the court determined that the sentence was within the appropriate range for the severity of the offences committed. The appeal was thus dismissed.
The final orders of the court confirmed the original sentence imposed by the trial judge, affirming that the sentence was not manifestly excessive and that no errors were made in the sentencing process. The court's decision underscores the importance of respecting the trial judge's discretion and the need for appellate courts to exercise caution when reviewing sentencing decisions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Lowndes v. The Queen[15] the High Court said: “Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.” (Emphasis added). [15] (1999) 195 C.L.R. 665 at 671. The reference to the principle being “basic” is to the well-known case of House v. The King[16]. The reason why the sentencing judge’s role is of vital importance in the administration of the criminal justice system is because he or she is entrusted with the function of sentencing the criminal. If due weight is not given to that role, then the arena for sentencing would move from the court at first instance to the appellate court which of course would then have the effect of reducing the proceeding in the lower court to nothing more than a preliminary skirmish. See observations of Gibbs, C.J., Wilson and Brennan JJ. in another context in Coulton v. Holcombe[17]. Full effect must be given to the decision reached by the sentencing judge in the exercise of his or her discretion. [16] (1936) 55 C.L.R. 499. [17] (1986) 162 C.L.R. 1 at 7. This Court is dealing with an attack upon a discretionary judgment. The principles which have been often quoted were stated by Dixon, Evatt and McTiernan, JJ. in House v. The King [18]. It is unnecessary to repeat them. [18] At pp.504-5. It must not be overlooked that House v. The King was a criminal case and in later cases the principles were applied to the sentencing process in a criminal proceeding[19]. More recently the principles were again re-stated by the High Court in Dinsdale v. The Queen [20]. [19] See Cranssen v. The King (1936) 55 C.L.R. 509 at 519; Harris v. The Queen (1954) 90 C.L.R. 652 at 655-6. [20] (2000) 202 C.L.R. 321 at 324-6 per Gleeson, C.J. and Hayne, J. and 339-41 per Kirby, J. In Australian Coal and Shale Employees Federation v. The Commonwealth[21] Kitto, J. referred to what he described as “a strong presumption in favour of the correctness of the decision appealed from” in the context of the appellate jurisdiction involving a discretionary judgment. Although the case was a civil one, in my view his Honour’s observations apply to the exercise of a discretionary judgment in sentencing. [21] (1953) 94 C.L.R. 621 at 627. The principles establish the following step-by-step process when considering an appeal against sentence. In Cranssen v. The King[24], Dixon, Evatt and McTiernan, JJ. said with respect to identification of error the following[25]: “But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.” [24] (1936) 55 C.L.R. 509. [25] At p.520.