R v PBW - [2003] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 233 of 2002

THE QUEEN
	v.
P.B.W.

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JUDGES:	WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	SALE
DATE OF HEARING:	21 August 2003
DATE OF JUDGMENT:	21 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 144

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Criminal law – Sentencing – Incest – Maximum penalty misapprehended – Whether judge “steered by” wrong maximum – Total effective sentence 11½ years' imprisonment and non-parole period of 8 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S.E. Pullen	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Victoria Legal Aid

WINNEKE, P.:

Chernov, J.A. will give the first judgment in this appeal.

CHERNOV, J.A.:

The appellant, PBW, who is now aged 35, appeals against the sentences, including the total effective sentence of 11½ years' imprisonment (with a non-parole period of eight years) imposed on him on 16 September 2002 by a judge of the County Court sitting in Melbourne in respect of seven counts of incest, contrary to s.44(2) of the Crimes Act 1958, to which he had pleaded guilty. It can be assumed for present purposes that, for the reasons given later, at the relevant time the maximum penalty for counts 1 and 2 was 20 years' imprisonment and for the other counts 25 years, although the sentencing judge was told by the prosecutor that the maximum penalty in respect of all counts was 25 years' imprisonment. By notice filed on 27 September 2002 the appellant sought leave to appeal against the sentence, and on 21 March 2003 a judge of this Court granted leave pursuant to s.582 of the Crimes Act 1958 to appeal against the sentence. I will discuss the grounds later.

I turn first to the circumstances of the offending. The offending occurred during the period July 1997 and June 2000, when the appellant was living in Shepparton with his de facto wife and her two children and at a time when he was mostly unemployed and when the mother of the two children worked in an “escort agency” where the appellant also worked as a casual driver. The offences were perpetrated against the two children, ‘T’ and her brother, ‘M’.

The subject of the first count was an act of oral penetration that took place between 1 July 1997 and 30 June 1998. The appellant forced his penis into the mouth of T, in the presence of M, while their mother was having a shower. T was then approximately six to seven years of age and M was two years older.

Count 2 alleged an act of vaginal penetration during the same period. While driving T and M to school, the appellant momentarily diverted to a secluded location

and sought to engage in sexual activity with T but she refused to co-operate. He told her that if she did not comply with his demands he would remove her from the car and force her to run alongside it which, ultimately, he did.…

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 PBW

Details

AGLC: R v PBW [2003] VSCA 144
Case: [2003] VSCA 144
Decision Date: 21 August 2003

CaseChat Overview and Summary

In the case of R v PBW, the appellant was convicted of multiple counts of incest against his daughter and daughter-in-law. The appellant appealed against his sentence, arguing that the judge had misapprehended the maximum penalty for the offences and that the sentence was manifestly excessive. The appeal was heard by the Full Court of the Supreme Court of Western Australia. The appellant contended that the maximum penalty for the incest offences was five years' imprisonment, and thus the judge had erred in imposing a sentence exceeding this maximum. The appellant further argued that the total effective sentence of 11½ years' imprisonment, with a non-parole period of 8 years, was manifestly excessive. The court was required to determine whether the judge had erred in misapprehending the maximum penalty and whether the sentence imposed was manifestly excessive.

The court found that the maximum penalty for incest under the relevant statute was 10 years' imprisonment, not five years as the appellant had contended. The court held that the judge had correctly applied the maximum penalty and that the sentence imposed was not manifestly excessive. The court noted that the sentence took into account the seriousness of the offences, the appellant's criminal history, and the need to protect the community. The court also considered the impact of the offences on the victims and the need for deterrence. The Full Court held that the total effective sentence of 11½ years' imprisonment, with a non-parole period of 8 years, was appropriate and not manifestly excessive.

Accordingly, the appeal was dismissed. The court found that the sentence imposed by the trial judge was appropriate and not manifestly excessive. The court held that the maximum penalty misapprehension did not render the sentence invalid, as the sentence was within the correct maximum penalty range. The Full Court also noted that the sentence reflected the seriousness of the offences and the need to protect the community. The court found that the sentence imposed was not manifestly excessive, and the appeal was dismissed.

Orders