R v RNT

Case [2009] VSCA 137 15 June 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 190 of 2007

THE QUEEN
	v
RNT

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JUDGES:	MAXWELL P and KELLAM JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2009
DATE OF JUDGMENT:	15 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 137
JUDGMENT APPEALED FROM:	R v RNT (Unreported, County Court of Victoria, Judge Robertson, 7 June 2007)

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CRIMINAL LAW – Appeal – Conviction – Multiple counts of indecent act with a child under 16 and sexual penetration of a child under 16 – Single count of maintaining a sexual relationship with a child under 16 – Individual counts related to period covered by relationship count – Not open to charge both – Conviction on relationship count quashed – TheQueen v GJB [2002] VSCA 54 applied – Resentenced – No change to total effective sentence (nine years and nine months) or non-parole period (eight years).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J C Silbert SC with Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr B J Bourke	Harwood Andrews Lawyers

MAXWELL P,
KELLAM JA:

This proceeding began as a sentence appeal but, as explained below, the Crown conceded that the conviction on one count could not stand. As a result, the appellant (‘RNT’) falls to be resentenced on the remaining counts, and it is unnecessary to consider his grounds of appeal against sentence.

RNT pleaded guilty in the County Court at Geelong to 12 counts of sexual offending. The victim of the offence the subject of count 1 was his stepdaughter (A). The victim of all the other offences was his stepson (J). RNT was sentenced as follows:

TABLE A: Sentence imposed

Count	Offence	Maximum Penalty	Age of victim	Sentence imposed	Cumulation directed
1	Indecent act with child under 16	10 y	11-12	1 y 6 m	9 m
2	Indecent act with child under 16	10 y	11-12	3 y	-
3	Indecent act with child under 16	10 y	11-12	4 y	-
4	Sexual penetration of child under 16	15 y	11-12	5 y	-
5	Sexual penetration of child under 16	15 y	11-12	5 y	-
6	Indecent act with child under 16	10 y	12-13	3 y	-
7	Indecent act with child under 16	10 y	13-14	3 y	-
8	Sexual penetration of child under 16	15 y	13-14	5 y	-
9	Sexual penetration of child under 16	15 y	13-14	5 y	-
10	Indecent act with child under 16	10 y	13-14	4 y	-
11	Indecent act with child under 16	10 y	11-14	3 y	-
12	Maintaining a sexual relationship with a child under the age of 16	25 y	11-14	9 y	Base
Total effective sentence: 9 years 9 months’ imprisonment Non-parole period: 8 years’ imprisonment

It is necessary first to recount the facts constituting each count. To that end, an edited version of the Crown summary presented at the plea hearing…

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 RNT

Details

AGLC: R v RNT [2009] VSCA 137
Case: [2009] VSCA 137
Decision Date: 15 June 2009

CaseChat Overview and Summary

The case of R v RNT involves an appeal against a conviction and sentence for multiple counts of indecent acts with a child under 16, sexual penetration of a child under 16, and maintaining a sexual relationship with a child under 16. The accused was convicted of these offences following a trial in the County Court of Victoria and sentenced to a total effective term of imprisonment of nine years and nine months, with a non-parole period of eight years. The accused appealed the conviction on the basis that it was not possible to be guilty of both the relationship offence and the other charges.

The primary legal issue before the Court of Appeal was whether the accused could be separately convicted of the individual acts of sexual abuse and the overarching relationship offence. The Court examined the principle established in The Queen v GJB, which held that it was not possible for a person to be convicted of both the individual acts and the relationship offence if the acts were part of the relationship. The Court of Appeal considered whether the reasoning in GJB applied to the facts of this case.

The Court of Appeal concluded that the principle in GJB applied to the current case and that the accused could not be separately convicted of both the individual acts and the relationship offence. The conviction on the relationship count was quashed, but the total effective sentence and non-parole period remained unchanged. The Court held that the individual acts were part of the overarching relationship, and therefore it was not possible for the accused to be separately convicted of both the individual acts and the relationship offence.

The Court of Appeal quashed the conviction on the relationship count but did not alter the total effective sentence or the non-parole period. The Court held that the principle established in GJB applied to the current case and that the individual acts were part of the overarching relationship. As a result, the conviction on the relationship count was quashed, but the sentence remained unchanged.

Orders