R v RGG

Case [2008] VSCA 94 6 June 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 431 of 2006

THE QUEEN
	v
RGG

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JUDGES:	ASHLEY and NEAVE JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 May 2008
DATE OF JUDGMENT:	6 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 94

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CRIMINAL LAW — Sentence — Appeal against total effective sentence of eleven years and two months’ imprisonment with non-parole period of eight years for two counts of sexual penetration of a child under 16 years, one count of indecent assault, and one count of attempted sexual penetration of a child under 16 years — Representative counts — Identifying conduct represented — Manifestly excessive — Mitigatory circumstances — Relevance of age and ill-health of accused — Appeal allowed — Appellant re-sentenced to total effective sentence of eight years and three months’ imprisonment with non-parole period of five years.

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

ASHLEY JA:

I have had the advantage of reading the reasons of Lasry AJA in draft. I agree with his Honour that the appeal should be allowed, and that the appellant should be re-sentenced as his Honour proposes.

I agree with Lasry AJA that the sentence imposed below was manifestly excessive. That is enough to dispose of the matter, and I need not say anything about the contention of specific error raised by ground 2.

Whilst it is unnecessary to decide how the manifestly excessive sentence came about, the likely explanation is that the appellant’s personal circumstances (of which his age at time of sentence was only one aspect) and his plea of guilty (together with other evidence of remorse) were accorded insufficient weight in his favour in the sentencing synthesis. There is an ever-present danger, I think, when a person is to be sentenced for child sexual offences, that lip service and nothing more will be paid to matters going in mitigation. In this case, there were substantial mitigatory circumstances.

There is one other matter about which I wish to say something. I expressly agree with Lasry AJA that when a person is to be sentenced on a representative count, the sentencing judge should record what has been agreed to be the conduct of which the count is representative and the approximate frequency of such conduct over a specified period of time.

The consequences for sentencing purposes of a count being a representative count were extensively discussed in R v SBL.[1] Whether or not the duration and circumstances of conduct represented by a count should be described as an aggravating circumstance,[2] absence of a potential circumstance of mitigation and consideration of an offence ‘in its full circumstantial context’ is at least likely to lead to a heavier sentence than would otherwise be passed.

[1][1999] 1 VR 706.

[2]R v SBL, Ibid 724–725, [65] (Ormiston JA); 725–726 [69]–[70] (Batt JA).

In every case, a sentencing…

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.

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Details

AGLC: R v RGG [2008] VSCA 94
Case: [2008] VSCA 94
Decision Date: 6 June 2008

CaseChat Overview and Summary

The case of R v RGG involved the appellant, who was convicted on two counts of sexual penetration of a child under 16 years, one count of indecent assault, and one count of attempted sexual penetration of a child under 16 years. The trial judge sentenced the appellant to a total effective sentence of eleven years and two months' imprisonment, with a non-parole period of eight years. The appellant appealed against the sentence, arguing it was manifestly excessive. The appeal was heard by the court of appeal, which was tasked with determining whether the sentence imposed was appropriate and whether any mitigating factors should be considered.

The court of appeal needed to decide whether the sentence was manifestly excessive, taking into account the representative counts and the nature of the offending. The court also had to consider the mitigating factors presented, including the appellant's age and ill-health, and whether these warranted a reduction in the sentence. The court was required to balance the severity of the offences with the appellant's personal circumstances and the principle of proportionality in sentencing.

In delivering the judgment, the court of appeal found that the sentence was indeed manifestly excessive. The court identified that the two counts of sexual penetration of a child under 16 years represented the most serious aspect of the offending. However, the court noted that the appellant's age and ill-health were significant mitigating factors. After considering these factors, the court concluded that the appropriate sentence should reflect a total effective term of eight years and three months’ imprisonment, with a non-parole period of five years. The appeal was thus allowed, and the appellant was re-sentenced accordingly.

The final orders of the court involved the appellant being re-sentenced to a total effective sentence of eight years and three months’ imprisonment, with a non-parole period of five years. The court's decision emphasised the importance of considering both the gravity of the offences and the personal circumstances of the offender when determining an appropriate sentence.

Orders