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TRG v The Queen

TRG v The Queen

Case [2011] VSCA 337 10 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0400

TRG	Appellant
	v
THE QUEEN	Respondent

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2011
DATE OF JUDGMENT	10 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 337	1^st Revision: 22 Nov 2011 [18] & [29]
JUDGMENT APPEALED FROM	DPP v [TRG] (Unreported, County Court of Victoria, Judge Wood, 1 November 2010

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CRIMINAL LAW − Sentence − Sexual offences against four separate children (13 charges) − Total effective sentence of 11 years and 9 months imprisonment with non-parole period of 7 years and 9 months − Elderly offender − Whether judge erred by not applying Verdins principles with respect to appellant’s depression − Whether sentencing judge erred in finding that appellant’s depression was supervening condition caused by his wife’s ill-health and his then-pending incarceration − Whether judge erred in principle in stating that rehabilitation played subordinate function in sentencing in cases of this kind −Whether sentence manifestly excessive in light of appellant’s age, ill health or absence of further offending, delay and pleas of guilty −Appeal dismissed – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J R McLoughlin with Mr P Smallwood	Victoria Legal Aid
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

I agree with Weinberg JA.

WEINBERG JA:

On 8 October 2010, the appellant pleaded guilty in the County Court at Melbourne to 13 charges involving sexual offending against four separate children.

The offences in question occurred between 1970 and 1978. Three of the four victims, ‘CD’, ‘KD’ (both boys) and ‘MD’ (a girl), were the appellant’s nephews and nieces by marriage, and the fourth victim, ‘AP’, was his daughter.

On 1 November 2010, the appellant was sentenced as follows:

Count Offence Maximum sentence Sentence Cumulation

1 Indecent assault of a male under the age of 16 (prior 1981) (s 68(3A)) 5 years 15 months

2 Attempted buggery 10 years 3 years 1 year

3 Indecent assault of a male under the age of 16 (prior 1981) (s 68(3A)) 5 years 2 years 6 months

4 Indecent assault of a girl under the age of 16 5 years 21 months 5 months

5 Indecent assault of a girl under the age of 16 5 years 21 months 5 months

6 Indecent assault of a male under the age of 16 (prior 1981) 5 years 9 months

7 Indecent assault of a male under the age of 16 5 years 15 months

8
Buggery of a person under 14
20 years 5 years 18 months

9 Indecent assault of a girl under the age of 16 5 years 18 months

10 Indecent assault of a girl under the age of 16 5 years 3 years 1 year

11 Indecent assault of a girl under the age of 16 5 years 21 months 5 months

12 Rape 20 years 5 years 18 months

13 Rape 20 years

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 TRG v The Queen

Details

AGLC: TRG v The Queen [2011] VSCA 337
Case: [2011] VSCA 337
Decision Date: 10 November 2011

CaseChat Overview and Summary

The appellant in this case, TRG, appealed against his sentence for multiple sexual offences against four separate children, resulting in a total effective sentence of 11 years and 9 months imprisonment with a non-parole period of 7 years and 9 months. The appeal was heard by the High Court of Australia. The appellant argued that the sentencing judge had erred in not applying the principles set out in Verdins, particularly in relation to the appellant's depression, and that the sentencing judge had wrongly considered the appellant's depression a supervening condition caused by his wife's ill-health and his impending incarceration. The appellant also contended that the sentencing judge had erred in principle by stating that rehabilitation played a subordinate function in sentencing in cases of this kind. Furthermore, the appellant argued that the sentence was manifestly excessive in light of his age, ill health, absence of further offending, delay, and his pleas of guilty.

The High Court examined whether the sentencing judge had erred in not applying the Verdins principles regarding the appellant's depression, and whether the judge had wrongly considered the appellant's depression a supervening condition. The Court also assessed whether the sentencing judge had erred in principle by stating that rehabilitation played a subordinate function in sentencing in cases of this kind. The Court further evaluated whether the sentence was manifestly excessive in light of the appellant's age, ill health, absence of further offending, delay, and pleas of guilty. The Court found that the sentencing judge had not erred in any of the grounds raised by the appellant and dismissed the appeal, concluding that no point of principle was involved.

The High Court found that the sentencing judge had not erred in any of the grounds raised by the appellant, including the application of Verdins principles, the consideration of the appellant's depression as a supervening condition, the role of rehabilitation in sentencing, and the overall severity of the sentence. The Court concluded that the sentence was appropriate and not manifestly excessive, taking into account all relevant factors. The appeal was therefore dismissed, and the original sentence was upheld.

The final orders of the High Court were that the appeal was dismissed, and no point of principle was involved. The original sentence of 11 years and 9 months imprisonment with a non-parole period of 7 years and 9 months was upheld.

Orders