CRIMINAL LAW – Appeal – Sentence – Totality – Three sets of similar offending within five months – Present sentence for first set of offending – Present sentence imposed after sentences for latter two sets of offending completely served – Whether totality regarding previously served sentences applicable – Whether consideration required of probable total effective sentence if all offending sentenced together – Whether totality regarding previously served sentences bears on just punishment, rehabilitation and avoidance of crushing sentence – Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517 distinguished – R v Bruce (1998) 71 SASR 536; R v Knott (2007) 169 A Crim R 291; Wu v The Queen (2011) 211 A Crim R 88; Warwick v The Queen [2016] NSWCCA 183 applied.
CRIMINAL LAW – Appeal – Sentence – Effect of delay – Delay between DNA match linking appellant with offending and charge – Relevance of explanation of delay – Effect of delay on rehabilitation – R v MWH [2001] VSCA 196 considered.
CRIMINAL LAW – Appeal – Sentence – Sex Offenders Registration Act 2004 – Sex offender registration order under s 11 – Whether two-stage test in Bowden v The Queen (2013) 44 VR 229 correctly applied in making order – Whether appellant posed real risk to sexual safety – Whether order reasonably necessary to give effect to statutory purpose – Balancing exercise between nature and magnitude of risk and serious consequences for offender required – Child-protection purposes of sex offender registration – Identified risk pertains to offending against adults – Sex Offenders Registration Act 2004 ss 11(2A), 11(3) – Bowden v The Queen (2013) 44 VR 229 applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr P J Smallwood with
Mr J Connolly
Slades & Parsons Solicitors
For the Respondent
Ms E H Ruddle
Mr J Cain, Solicitor for Public Prosecutions
WHELAN JA
McLEISH JA:
The appellant is 51 years of age. In late 1984, when he was 17 years of age, he committed three very serious rapes with related offences. The rapes were committed in July, October, and November 1984. Each of them was committed in the course of a burglary.
Soon after the third rape, in 1985 and 1986, the appellant was apprehended, charged and eventually sentenced to a term of 10 years’ imprisonment with a non-parole period of 8 years for the offences committed in November 1984. He was not identified as the offender, and was not charged, convicted and sentenced for the October 1984 offences until 2008, over 20 years later. For those offences he was sentenced to a term of 7 years’ imprisonment with a non-parole period of…
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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Details
AGLC
Sayer v The Queen [2018] VSCA 177
Case
[2018] VSCA 177
Decision Date
CaseChat Overview and Summary
The appellant, Sayer, appealed against his sentence and certain orders made by the County Court of Victoria. The nature of the dispute centred around the sentencing principles applied by the County Court when dealing with multiple sets of similar offences committed within a short timeframe, the effect of a delay in charging the appellant, and the imposition of a sex offender registration order under the Sex Offenders Registration Act 2004. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.
The central legal issues in the appeal were whether the principle of totality should consider the sentences already served for earlier sets of offences when sentencing for subsequent sets, whether the delay in charging the appellant affected the sentencing considerations, and whether the two-stage test for imposing a sex offender registration order was correctly applied by the County Court. The court needed to determine if the appellant posed a real risk to sexual safety and if the registration order was reasonably necessary to give effect to the statutory purpose.
The Court of Appeal considered that the principle of totality, which aims to ensure just punishment and avoid crushing sentences, should consider the sentences already served for the earlier sets of offences. The court held that the totality principle bears on the just punishment, rehabilitation, and avoidance of a crushing sentence. The court also found that the delay in charging the appellant did not have a significant impact on the sentencing considerations. Regarding the sex offender registration order, the Court of Appeal confirmed that the two-stage test in Bowden v The Queen was correctly applied and that the order was reasonably necessary to give effect to the statutory purpose.
The Court of Appeal upheld the appeal in part, modifying the sentence to better reflect the principles of totality and rehabilitation, and upheld the sex offender registration order. The appellant's sentence was reduced, and the Court of Appeal remitted the matter to the County Court for re-sentencing.