R v Wright - [2009] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 751 of 2007

THE QUEEN
	v
ROBERT WRIGHT

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JUDGES:	MAXWELL P, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2009
DATE OF JUDGMENT:	27 February 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 27

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CRIMINAL LAW – Appeal – Sentencing – Multiple counts of indecent assault upon males under the age of 16 – Significant delay between commission of offences and sentencing – Offending over a seven year period – Appellant had already served terms of imprisonment for like offending over the same period – Appellant’s exceptional efforts to rehabilitate himself – Whether sentencing judge erred in application of principle of totality – Whether sentencing judge took proper account of rehabilitation – Whether sentence manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
Appellant	Mr G M Hughan	Victoria Legal Aid
Respondent	Mr S Cooper	Mr S Ward, Acting Solicitor for Public Prosecutions

MAXWELL P
NEAVE JA
WEINBERG JA:

The appellant, Robert Wright (formerly known as Robert Richardson), pleaded guilty in the County Court to 12 counts of indecent assault upon three males under the age of 16. Six of the counts were representative in nature.[1]
[1]Counts 1, 3, 4, 6, 11 and 12.

At the time of the offending, the maximum period of imprisonment for each of these offences was five years. After hearing a plea in mitigation the judge sentenced the appellant to 12 months’ imprisonment on each count. Because of prior convictions for similar offences, the appellant was required to be sentenced as a serious sexual offender on each count. His Honour ordered that four months of each of the terms of imprisonment imposed on counts 2-12 be served cumulatively upon the sentence imposed on count 1. This amounted to a total effective sentence of four years and eight months’ imprisonment. His Honour fixed a non-parole period of three years. The appellant was registered under s 6 of the Sex Offenders Registration Act 2004 and ordered to report for life. He now appeals against that sentence.

The circumstances of the offending and of the offender

The offences against the three complainants occurred in similar circumstances over the period from September 1975 to April 1982. The victims, LW, GM and AS, were St John’s Ambulance cadets, aged between 12 and 16. During the period of the offending, the appellant was aged between 26 and 32 years. He was the leader of the St John’s Ambulance division to which the complainants belonged. At the time of sentencing, all three complainants were in their early to mid 40s, and the appellant was 57.

It is unnecessary to describe each offence in detail. The offender’s acts involved genital fondling in a range of situations (including at camps, while driving a car, in the shower, and in bed). The offending against the victim LW also included the appellant masturbating him and, on one occasion, requiring LW to masturbate the appellant. The offending against AS included the appellant masturbating him to ejaculation and requiring…

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 Wright

Details

AGLC: R v Wright [2009] VSCA 27
Case: [2009] VSCA 27
Decision Date: 27 February 2009

CaseChat Overview and Summary

In this case, the appellant, Wright, was convicted on multiple counts of indecent assault upon males under the age of 16. The case was heard in the appellate court where the appellant sought to appeal the sentencing decision. The key issue was whether the sentencing judge had erred in the application of the principle of totality, whether the judge had properly accounted for the appellant's efforts at rehabilitation, and whether the sentence was manifestly excessive.

The court examined the principle of totality which requires that the cumulative sentence for multiple offences be proportionate to the overall gravity of the offending. The appellant argued that the sentencing judge had not adequately applied this principle, particularly given the significant delay between the commission of the offences and the sentencing. The court also considered the appellant's extensive efforts at rehabilitation, including his participation in programs designed to address his offending behaviour. The appellant had already served terms of imprisonment for similar offences over a period of seven years, which was a factor the sentencing judge had to consider.

The court found that while the offences were serious, the sentencing judge had taken into account the principle of totality and the appellant's efforts to rehabilitate himself. The court was satisfied that the sentence was not manifestly excessive, as it reflected the gravity of the offending and the appellant's personal circumstances. The appeal was dismissed, and the original sentence was upheld.

Orders