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R. v. RND

R. v. RND

Case [2002] VSCA 192 29 November 2002

Offences Against Children

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 324 of 2000

THE QUEEN
	v.
RND

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JUDGES:	ORMISTON, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 October 2002
DATE OF JUDGMENT:	29 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 192

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CRIMINAL LAW – Sentencing – Incest – Indecent assault – Gross indecency – Offences against step-children, commencing when each child aged nine years – Whether pleas of not guilty relevant to question of remorse – Complainants accused of lying during trial although applicant admitted before trial that their complaints were true – Whether sentence manifestly excessive – Total effective sentence of seven years and six months, with non-parole period of five years held not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C.	Pro Bono

ORMISTON, J.A.:

I have had the benefit of reading the judgment of Eames, J.A. in draft form and for the reasons he has given I would dismiss the application for leave to appeal against sentence. In my opinion the sentences imposed were modest, especially those for incest, which this Court has said on many occasions ordinarily ought to attract condign punishment.[1] Even if specific error had been made out, I would have imposed sentences at least as long as those imposed by the sentencing judge. In the light of what I perceive to have been his lenient approach to this offending, I would not use his occasionally incautious remarks to draw any inferences that his Honour had erred in imposing the sentences.

VINCENT, J.A.:

[1]See e.g. R. v. Wakime [1997] 1 V.R. 242 at 244;

R. v. NKM [2001] VSCA 71 at para.[6].

I agree that the application for leave to appeal against sentence should be dismissed for the reasons advanced by Eames, J.A.

EAMES, J.A.:

The applicant seeks leave to appeal against sentences imposed by a judge of the County Court upon his conviction after a trial on a range of sexual offences. Those convictions comprised 5 counts of gross indecency with a child under 16 who was under his care supervision or authority, contrary to s.50(1) of the Crimes Act 1958, those being counts 1 , 3, 4, 6, and 7, each of which carried a maximum sentence of 3 years, at the time of these offences, and on each of which counts he was sentenced to 12 months imprisonment. On count 5, an offence of indecent assault, contrary to s.44(1) (carrying a maximum 5 years), he was sentenced to 1 year and 6 months imprisonment. On counts 8, 10, and 15, being counts of indecent acts with a child under 16, contrary to s.47(1) (maximum 10 years), he was sentenced to 2 years imprisonment. On each of counts 11 and 14, offences of incest, contrary to s.44(2) (maximum 20 years), he was sentenced to 3 years and 6 months imprisonment. The applicant was acquitted by direction on four counts.

Three…

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. RND

Details

AGLC: R. v. RND [2002] VSCA 192
Case: [2002] VSCA 192
Decision Date: 29 November 2002

CaseChat Overview and Summary

The case of R. v. RND involved a man who was convicted of multiple offences, including incest, indecent assault, and gross indecency against his step-children. The incidents began when the children were nine years old and the case was heard in a higher court. The defendant appealed against the severity of his sentence, arguing that it was manifestly excessive. The key legal issues that the court had to address included the relevance of the defendant's pleas of not guilty to the question of remorse, the complainants' accusations of lying during the trial despite the defendant's admission before the trial that their complaints were true, and whether the total effective sentence of seven years and six months, with a non-parole period of five years, was indeed manifestly excessive.

The court considered the nature and severity of the offences, the impact on the victims, and the defendant's lack of remorse. The court found that the pleas of not guilty were not relevant to the question of remorse, as the defendant's admissions before the trial that the complaints were true were more pertinent. The court also found that the complainants' accusations of lying during the trial were not relevant to the sentencing process, as the primary focus was on the credibility of the defendant's admissions and the impact of the offences on the victims. In light of these considerations, the court concluded that the total effective sentence of seven years and six months, with a non-parole period of five years, was not manifestly excessive.

The court's reasoning and outcome were based on a careful assessment of the defendant's admissions, the impact of the offences on the victims, and the need for an appropriate sentence that reflects the seriousness of the crimes committed. The court found that the sentence imposed was proportionate to the gravity of the offences and took into account the need to protect the community and provide some measure of retribution and deterrence. The appeal against the sentence was dismissed, and the original sentence was upheld as not being manifestly excessive.

No further orders were made by the court, and the defendant's sentence remained as originally imposed. The case serves as a reminder of the importance of considering the impact of sexual offences on victims, the need for appropriate sentences that reflect the seriousness of such crimes, and the role of admissions and remorse in the sentencing process.

Orders