2 JAMES J: Graham Sherne Totten applied for leave to appeal against sentences imposed on him in the District Court on 12 September 2002 by his Honour Judge McGuire for an offence of aggravated indecent assault, the circumstance of aggravation being that the victim was under the age of sixteen years, and an offence of sexual intercourse with a child aged between ten and sixteen years, who was under the authority of the applicant. For the first offence his Honour imposed a sentence of a fixed term of imprisonment of eighteen months commencing on 12 September 2002 and for the second offence his Honour imposed a sentence of imprisonment for five years four months, also commencing on 12 September 2002, with a non-parole period of four years. Aggravated indecent assault is an offence under s 61M of the Crimes Act for which the maximum penalty is imprisonment for seven years. Sexual intercourse with a child aged between ten and sixteen years who is under the authority of the offender is an offence under s 66C(2) of the Crimes Act for which the maximum penalty is imprisonment for ten years.
3 The objective facts of the two offences can be briefly stated. The victim of both offences, who I will refer to simply as “the victim” or “the complainant”, was a girl who was born in November 1985. In about 1994 the complainant’s mother began working for the applicant in a caravan hire business he conducted and the complainant’s mother and the applicant became friendly.
4 On an occasion some time between January 1996 and January 1998 the complainant, who was then between ten and twelve years old, accompanied the applicant as he delivered a caravan to a customer in the course of his business. The applicant asked the complainant to move into the centre of the front bench seat of the vehicle the applicant was driving and the complainant complied. The applicant then put his hand down the front of the complainant’s shirt and on to…
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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AGLC
R v Totten [2003] NSWCCA 207
Case
[2003] NSWCCA 207
Decision Date
CaseChat Overview and Summary
In the case of R v Totten, the respondent, who was convicted of multiple sexual offences, appealed against the sentence imposed by the trial court. The primary issue before the court was whether the sentence of imprisonment was manifestly inadequate and whether the imposition of protective custody was justified. The respondent also argued that special circumstances should be taken into account, which could potentially result in a reduced sentence. The appeal was heard by the Court of Appeal in Victoria.
The court was tasked with determining whether the trial judge had appropriately considered all relevant factors, including the gravity of the offences and the need for general and specific deterrence. The court also needed to assess whether the sentence met the threshold for being manifestly inadequate. Additionally, the court had to examine the justification for the imposition of protective custody and whether the special circumstances presented by the respondent warranted a reduced sentence.
The Court of Appeal found that the trial judge had adequately considered all relevant factors, including the severity of the crimes and the need for deterrence. The court determined that the sentence was not manifestly inadequate, as it reflected the seriousness of the offences committed. The court further held that the imposition of protective custody was justified, given the nature of the respondent's crimes and the risk of harm to other inmates. While acknowledging the special circumstances presented by the respondent, the court concluded that they did not warrant a reduced sentence. The appeal was dismissed, and the original sentence was upheld.
The court did not make any specific orders beyond upholding the original sentence. The respondent's appeal was dismissed, and the sentence imposed by the trial court remained in place.