Tiburcy v The Queen - [2010] VSCA 307

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0897 A

JURGEN TIBURCY
	Appellant
v
THE QUEEN	Respondent

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JUDGE:	MAXWELL P, WEINBERG JA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 October 2010
DATE OF JUDGMENT: MEDIUM NEUTRAL CITATION:	19 October 2010 [2010] VSCA 307
JUDGMENT APPEALED FROM:	R v Tiburcy (Unreported, County Court of Victoria, Judge Rizkalla, 2 November 2007)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary (one count) – Rape (two counts) – Total effective sentence seven years six months; non-parole period six years – Non-parole period represented 80 per cent of total effective sentence – Crown concession – Non-parole period outside the range open to sentencing judge – Appeal allowed – Appellant resentenced to shorter non-parole period – Head sentence unchanged.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms H Spowart	Victoria Legal Aid
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

WEINBERG JA

ROSS AJA:

The appellant pleaded guilty to one count of aggravated burglary and two counts of rape. These offences took place on 11 March 2007. That evening, the appellant arrived at his former partner’s unit in a highly intoxicated state. He did not, however, enter the unit, and decided to sleep on a bench outside instead. The next morning the ex-partner, with whom the appellant had maintained a cordial relationship, found him outside and invited him in for a cup of coffee. About an hour later, the ex-partner showed him out as she was leaving for work. Her 16-year-old daughter (the ‘complainant’) was asleep inside. The appellant had told the ex-partner he would wait for the taxi he had ordered outside. His ex-partner locked the front door behind her.

In fact, the appellant had not called a taxi. After his ex-partner left, he entered the unit through an unlocked back door, and went to the complainant’s bedroom (giving rise to the aggravated burglary count). He instructed her to remove her clothes, saying that he would do this for her if she refused. He threatened to kill her if she did not comply. The two subsequently went into the kitchen, where the complainant screamed and tried to run out the front door. The appellant covered her mouth and dragged her into her bedroom, where he forced her to remove her clothes. He instructed her to lie in the bed. He then lay next to her, placing his hand between her legs, touching her vagina and ultimately penetrating it with his fingers (giving rise to the first count of rape). He kissed her breasts, licked her vagina and then forced her to fellate him (giving rise to the second count of rape). He then showered with the complainant, told her not to tell anyone what had happened, and left.

On 2 November 2007 the appellant was sentenced in the County Court as follows:

Count

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary

25y

3y

1.5y

2

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 Tiburcy v The Queen

Details

AGLC: Tiburcy v The Queen [2010] VSCA 307
Case: [2010] VSCA 307
Decision Date: 19 October 2010

CaseChat Overview and Summary

The appellant, Tiburcy, appealed against the sentence imposed by the Supreme Court of Victoria for his convictions of aggravated burglary and two counts of rape. The Supreme Court of Victoria had sentenced the appellant to a total effective sentence of seven years and six months, with a non-parole period of six years. The appellant argued that the non-parole period represented an excessive proportion of the total effective sentence, and that it was outside the range open to the sentencing judge. The Crown conceded that the non-parole period was outside the range open to the sentencing judge.

The legal issues before the court were whether the non-parole period was excessive and whether it was outside the range open to the sentencing judge. The court considered the principles of sentencing for aggravated burglary and rape, and the relevant statutory provisions. The court also considered the appellant's criminal history, the circumstances of the offences, and the need for general and specific deterrence. The court held that the non-parole period was excessive and outside the range open to the sentencing judge. The court also held that the head sentence for each count should remain unchanged.

The court allowed the appeal and resentenced the appellant to a total effective sentence of seven years and six months, with a non-parole period of five years. The court held that the head sentence for each count should remain unchanged, but that the non-parole period should be reduced to reflect the excessive proportion of the total effective sentence. The court noted that the non-parole period should not represent more than 75 per cent of the total effective sentence, and that in this case it represented 80 per cent. The court also noted that the Crown had conceded that the non-parole period was outside the range open to the sentencing judge. The court held that the appropriate non-parole period for the appellant's offences was five years.

Orders

Orders of the court

In our view the appellant should be resentenced as follows:

Count 1- three years’ imprisonment

Count 2 - four years’ imprisonment

Count 3 - four years’ imprisonment

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Count	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary	25y	3y	1.5y
2