R B N v The Queen [2011] VSCA 261

Court of Appeal (Vic)|2011-08-03|Before: Michael J, Maxwell P, Ashley JA

The application for leave to appeal against conviction is granted.
The appeal is treated as instituted and heard instanter and is allowed.
The convictions sustained by the appellant in the Court below on counts 2 and 4 of Presentment X03047170 are quashed and the sentences passed thereon are set aside.
The Court directs a judgment and verdict of acquittal to be entered on those counts.
The appeal against sentence is allowed.
The sentences of imprisonment imposed below on the first Presentment are quashed. In lieu thereof, the appellant is sentenced as follows:

The Court directs that 1 year of the sentence imposed on count 3, 1 year of the sentence imposed on count 5, 3 months of the sentence imposed on count 7 and 3 months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 5 years 6 months' imprisonment.
The sentences of imprisonment imposed below on the second Presentment are quashed. In lieu thereof, the appellant is sentenced as follows:

The Court directs that 6 months of the sentence imposed on count 2 and 6 months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of 5 years' imprisonment.
The Court directs that 2 years of the sentence imposed on the second Presentment be served cumulatively upon the sentence imposed on the first Presentment, making a total effective sentence of 7 years 6 months' imprisonment.
A non-parole period of 4 years 6 months is fixed.
It is declared that the period of 1015 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
All other ancillary orders are confirmed.

The appellant is sentenced for the offences the subject of counts 1,2 and 3 on the second Presentment as a serious sexual offender and it is ordered that that fact be entered in the records of the Court.

The Court grants to the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998.

Pursuant to s 6AAA of the Sentencing Act 1991, we state that if it had not been for the appellant's plea of guilty, we would have imposed the following sentence: total effective sentence of 10 years' imprisonment and a non-parole period of 7 years.

In accordance with s 6AAA(4), we will cause it to be noted in the records of the Court that in respect of the individual counts the sentence which would have been imposed but for the plea of guilty is as follows:

[3] Pollard v The Queen [2011] VSCA 95, [34].

[4] DPP (Vic) v CPD [2009] VSCA 114; (2009) 22 VR 533, 546-7 [54]-[56] ('CPD') and the cases there cited.

[9] [2011] VSCA 250, Appendix B.

[12] Mill v The Queen (1988) 166 CLR 59, 63; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, 623 [18].

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