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RBN v The Queen

RBN v The Queen

Case [2011] VSCA 261 3 August 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0736
S APCR 2010 0343

R B N
	Applicant
v
THE QUEEN
	Respondent

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JUDGES:	MAXWELL P, ASHLEY JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2011
DATE OF JUDGMENT:	3 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 261
JUDGMENT APPEALED FROM:	R v [R B N] (Unreported, County Court of Victoria, Judge Rizkalla, 16 July 2009)

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CRIMINAL LAW – Appeal – Sentence – Incest, indecent act, aggravated burglary – Convictions on two counts not open – Crown concession – Resentencing – Absence of aggravating factors – Consideration of sentencing range – Structure of sentence where multiple presentments.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Michael J Gleeson & Associates
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

The applicant pleaded guilty in the County Court to a series of sexual offences, including incest, against his two stepdaughters and to offences of aggravated burglary, false imprisonment and assault against his then wife who was the mother of the two girls. He was sentenced as set out below.

Count Offence Maximum penalty Sentence Cumulation

Presentment X0304170

1 Incest 25y 4y Base

2 Indecent act with child under 16 10y 9m -

3 Incest 25y 4y 1y

4 Indecent act with child under 16 10y 9m -

5 Aggravated burglary 25y 2y 1y

6 False imprisonment 10y 6m -

7 Common law assault 5y 18m 6m

8 Contravening an intervention order 20 penalty units or 6m imprisonment or both 12m -

Total sentence on Presentment X0304170 6 years 6 months imprisonment

Presentment X03047170.2

1 Incest 25y 5y Base

2 Incest 25y 5y 2y

3 Incest 25y 5y 2y

Total sentence on Presentment X03047170.2 9y imprisonment
5y to be served cumulatively on the sentence imposed on Presentment X0304170

Total effective sentence 11y 6m

Non-parole period 9y

Pre-sentence detention 267 days

Section 6AAA Statement TES: 15y
NPP: 12y

The applicant now seeks leave to appeal against conviction and against sentence. The conviction application is not opposed, notwithstanding the pleas of guilty, because it is now acknowledged that the convictions on counts 2 and 4 were not open in law. This was so because, at the time of the conduct in question, the elder stepdaughter had already turned 16. The Crown concedes that the convictions on both those counts should be quashed.

Senior counsel for the Crown informed us in the course of argument that consideration had been given as to whether convictions on alternative counts (namely, indecent act with or in the presence of a 16 or 17 year old child under his care, supervision or authority) could be substituted for the convictions to be quashed. The Crown ultimately submitted that they could not. I agree with that submission, for the following reasons.

Subsection 421(2) of the Crimes Act 1958 (Vic), as in force at the time of the trial, provided:

Where, on a person's trial…

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 RBN v The Queen

Details

AGLC: R B N v The Queen [2011] VSCA 261
Case: [2011] VSCA 261
Decision Date: 3 August 2011

CaseChat Overview and Summary

RBN appealed against his sentence for incest, an indecent act, and aggravated burglary. The appeal was heard in the High Court of Australia. The central issue before the court was whether the appellant's convictions on two counts were open to challenge and, if so, what impact this had on his sentence. The court also considered the appropriate resentencing process given the absence of aggravating factors and the need to consider the sentencing range and structure of the sentence where multiple presentments were involved.

The court examined the principles of double jeopardy and the legal framework surrounding the appellant's convictions. It found that the Crown had conceded that the convictions on two counts were not open, and thus the appellant's appeal on this point was successful. The court then turned to the issue of resentencing, taking into account the absence of aggravating factors and the need to ensure that the sentence was proportionate and just. The court emphasised the importance of considering the sentencing range and the structure of the sentence in cases involving multiple presentments, ensuring that each offence was appropriately addressed within the overall sentence.

The High Court determined that the appellant's resentencing should reflect the absence of aggravating factors and the need for a sentence that was proportionate to the offences committed. The court concluded that the sentence should be structured in a way that appropriately addressed each of the offences while also considering the overall impact on the appellant. The court ordered that the appellant be resentenced by the trial court in light of these considerations.

The final orders of the court required the trial court to resentence the appellant, taking into account the specific issues raised in the appeal. The court emphasised the need for the resentencing to be proportionate and to appropriately reflect the absence of aggravating factors. The resentencing was to be conducted in a manner that ensured that each of the offences was adequately addressed within the overall sentence, with careful consideration given to the appropriate structure of the sentence where multiple presentments were involved.

Orders