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RSJ v The Queen

RSJ v The Queen

Case [2012] VSCA 148 29 June 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0059
R S J	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WARREN CJ and REDLICH and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2012
DATE OF JUDGMENT:	29 June 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 148
JUDGMENT APPEALED FROM:	R v [R S J] (Unreported, County Court of Victoria, Judge Pullen, 15 February 2010)

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CRIMINAL LAW – Sentence – Multiple counts of incest and indecent assaults committed against daughter over period of 28 years – Worst category of offending – Guilty plea – Total effective sentence of 22 years and 5 months’ imprisonment with non-parole period of 18 years not manifestly excessive – Judge’s findings correct as to limited mitigatory relevance of appellant’s age, health and mental impairment – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Hansen JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.

REDLICH JA:

It was accepted by counsel for the appellant that this was a unique worst category case which required a very substantial sentence notwithstanding the age of the appellant at the time of sentence. As a consequence of the imposition of the sentence of 22 years and five months’ imprisonment with a non-parole period of 18 years, the appellant will not become eligible for parole until his 84^th year. Thus, his primary argument that the sentencing judge had fallen into error in not giving the age of the appellant ‘great weight’. Such an approach was said to be inconsistent with the approach of the sentencing to offenders of advanced years propounded in R v RLP.[1]
[1][2009] VSCA 271, [39] (‘RLP’).

It was recognised in RLP that the advanced age of an offender may be a weighty consideration where a sentence is likely to require the offender to spend the whole or very substantial portion of the remainder of his life in custody. That consideration may require more punitive sentencing considerations to yield some ground to the need to exercise compassion to take account of the prospect that the offender may not live to be released. But as RLP states, just punishment proportionality and general and specific deterrence remain primary sentencing considerations. The sentencing judge was evidently conscious of these competing sentencing principles. Her approach reflects the fact that the weight to be given in the sentencing calculus to an offender’s advanced years and ill health will diminish as the objective gravity of the offending conduct increases. Consequently, in a case where the offending conduct is so grave as to fall within the worst category of case, it

was open to the sentencing judge to attribute to these mitigating factors the weight that…

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 RSJ v The Queen

Details

AGLC: RSJ v The Queen [2012] VSCA 148
Case: [2012] VSCA 148
Decision Date: 29 June 2012

CaseChat Overview and Summary

The appellant, RSJ, appealed against his conviction and sentence for multiple counts of incest and indecent assaults committed against his daughter over a period of 28 years. The case was heard in the High Court of Australia. The appellant pleaded guilty to 16 counts of incest and 11 counts of indecent assault. The trial judge imposed a total effective sentence of 22 years and 5 months’ imprisonment, with a non-parole period of 18 years. The appellant challenged the sentence on the grounds that it was manifestly excessive.

The legal issues before the court included whether the sentence imposed by the trial judge was manifestly excessive, and whether the judge’s findings regarding the limited mitigatory relevance of the appellant’s age, health, and mental impairment were correct. The appellant argued that the sentence was manifestly excessive due to the severity of the offending and the cumulative impact of the victim’s trauma. The appellant also contended that the judge had erred in undervaluing the mitigating factors of his age, health, and mental impairment.

The High Court held that the sentence was not manifestly excessive, and the judge’s findings regarding the mitigating factors were correct. The court found that the offending was of the worst category and had caused significant trauma to the victim. The court also noted that the appellant had shown a lack of remorse and had not taken responsibility for his actions. The High Court held that the sentence was appropriate and not manifestly excessive, and dismissed the appeal. The court found that the appellant’s age, health, and mental impairment had limited mitigatory relevance and did not warrant a significant reduction in sentence.

The High Court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court held that the sentence was appropriate and not manifestly excessive, and the judge’s findings regarding the mitigating factors were correct. The court found that the severity of the offending and the cumulative impact of the victim’s trauma justified the sentence imposed. The court also noted that the appellant had shown a lack of remorse and had not taken responsibility for his actions.

Orders