R v Kovac - [2006] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 373 of 2005

THE QUEEN
	v.
WILLI KOVAC

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JUDGES:	VINCENT, NEAVE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2006
DATE OF JUDGMENT:	30 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 229

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CRIMINAL LAW – Sentencing – Nine counts of indecent assault on a male under 16 – Offences committed between 1968 and 1980 – total effective sentence of nine years and six months – Appellant 74 years old – Various medical conditions – Whether imprisonment more burdensome to the appellant – Application of the test in R. v. Smith without reference to R. v. Van Boxtel – Crown concession that offender sentenced on mistaken basis – Sentencing discretion re-opened – Appeal allowed – offender re-sentenced to the same term.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. L.C. Carter	Victoria Legal Aid
For the Respondent	Mr. D. A. Trapnell	Ms A Cannon, Solicitor for Public Prosecutions

VINCENT, J.A.:

I agree that this appeal should be allowed, and agree with the orders proposed by Neave, J.A. in her judgment.

NEAVE, J.A.:

The appellant was convicted of 6 representative counts and 3 discrete counts of indecent assault on a male under 16. Three young boys were the victims of these offences. The appellant was sentenced to a total effective sentence of nine years and six months, with a minimum term of five years and six months before being eligible for parole. The present matter is an appeal against the severity of the sentence imposed.

The facts

The offences occurred during various periods between December 1963 and November 1980. The appellant was 31 in 1963, and 48 in 1980. He is now 74 years old. Two of the boys, MB and JL, were students at schools where the appellant taught physical education. The youngest victim, PR, was introduced to the appellant by a “street kid” who was allegedly paid to provide sexual services to men in the offender’s home.

Counts involving the victim MB

The offences covered by counts one to three occurred between 1963 and 1964. In 1963, the appellant was a physical education teacher at a Melbourne school and MB was his student. When MB was 11 or 12 years old, he attended a summer camp at Wilson’s Promontory, at which the appellant was a supervisor. Counts one and two are representative counts covering acts of fondling and fellatio of MB, which occurred while the appellant was playing hide and seek and other “games” with the victim at the camp.

Count three is a discrete count which covers acts which occurred following

some of the acts of fondling and fellatio covered by count two. The appellant placed his erect penis between MB’s upper thighs, underneath his scrotum and began masturbating by moving up and down. This continued until the appellant moved away and ejaculated on the ground.

Count four was another discrete count involving MB. During the school holidays in May or September of 1964, or…

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 Kovac

Details

AGLC: R v Kovac [2006] VSCA 229
Case: [2006] VSCA 229
Decision Date: 30 October 2006

CaseChat Overview and Summary

The appeal in R v Kovac involved the appellant who had been sentenced for nine counts of indecent assault on a male under 16, with the offences spanning from 1968 to 1980. The appellant was 74 years old at the time of sentencing and had various medical conditions which made the prospect of imprisonment particularly burdensome. The appeal focused on whether the sentence imposed was appropriate given the appellant’s age and health.

The court was required to determine if the total effective sentence of nine years and six months was just and whether the sentencing judge had adequately considered the principles applicable to sentencing an elderly offender with significant health issues. The test established in R v Smith was pivotal, focusing on whether imprisonment would be more burdensome to the offender than any other form of penalty. The Crown conceded that the sentencing judge had operated under a mistaken basis by not fully applying this test.

In delivering the judgment, the court noted that the sentencing judge had failed to adequately apply the principles set out in R v Smith, particularly in not considering the appellant's age and health conditions in the context of the burden of imprisonment. Despite this error, the Crown did not dispute that the sentence should have been reconsidered under the correct legal framework. The court therefore reopened the sentencing discretion and, after re-evaluating the case, concluded that the original sentence was appropriate and re-sentenced the appellant to the same term of nine years and six months.

Orders