R v Barnes [2003] VSCA 156

Court of Appeal (Vic)|2003-10-02|Before: CALLAWAY, BUCHANAN and EAMES, JJ.A.

For the reasons stated by Callaway, J.A. I would dismiss the application for leave to appeal against conviction, allow the appeal against sentence and substitute the sentence proposed by his Honour.

I agree with the orders proposed by Callaway, J.A. and with his Honour's reasons.

[1] Phillips, C.J., Crockett and Hampel, JJ., unreported, 20th March 1995.

[3] I have edited the summary very slightly, e.g. "20 December" for "29 December" in the first paragraph.

[6] Compare the extract from Dr Odell's report, set out in paragraph 23 of the schedule.

[7] R. v. Brown [2002] VSCA 207; (2002) 5 V.R. 463 at [34] per Chernov, J.A.

[8] Compare R. v. Scarfo [2002] VSCA 56 at [16].

[10] See R. v. Coffey at [6] and the cases there cited.

[11] Compare De Kruiff v. Smith [1971] VicRp 94; [1971] V.R. 761 at 766.

[15] Compare R. v. Natoli [2001] VSCA 243 at [15].

[16] Compare R. v. VZ [1998] VSCA 32 at [12]- [13].

[20] Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at 629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367; Bugmy v. R. at 531, 536 and 538; R. v. VZ at [3], [14] and [22]; R. v. Pope at [1], [28] and [32].

[22] Siganto v. R. [1998] HCA 74; (1998) 194 C.L.R. 656 at [22]; R. v. RND [2002] VSCA 192 at [17]- [19].

[23] At the time of the plea, because he had been assaulted whilst in custody, the appellant was in special protective custody.

[27] The appellant also owes seven months and five days to the Parole Board. It will be recalled that the judge declared that there were no exceptional circumstances of the kind referred to in s.16(3B). At the time of the plea no order had been made by the Parole Board. That is still the case. At a mention on 29th September 2003, at which reference was made to R. v. Orphanides [2002] VSCA 86; (2002) 130 A.Crim.R. 403, it was common ground that we should not predict what the Parole Board may do, but rather take the appellant's position into account as a general sentencing consideration. That is what I have done.

[28] See and compare the cases cited in R. v. Natoli at fn. 7.

[31] That does not make this case a further authority about the standard of proof. The point was not argued. Doubtless the parties assumed that the Court would apply the same standard as the judge. The ratio is not that that standard is proof beyond reasonable doubt but that, for the reasons stated, it is appropriate to apply it in this case.

[32] For a similar conclusion in relation to s.6D(a), see R. v. Dunne [2003] VSCA 150 at [24].

[33] See the judgment of Phillips, C.J. at 3-6.

[34] Compare Mill v. R. (1988) 166 C.L.R. 59 at 62-63 and R. v. Yates [1985] VicRp 3; [1985] V.R. 41 at 48.

[35] I do not accept that counts 1 and 2 were so much a prelude to counts 3 and 4 that there should be total concurrency. In any event the principal purpose of these directions is to achieve the necessary disproportionate sentence of eight years' imprisonment.

Criminal Law - Indecent act with child under 16 and other offences - Application for leave to appeal against conviction following plea of guilty - R. v. Coffey [2003] VSCA 155 applied - Leave to appeal against conviction refused - Serious sexual offender - Whether disproportionate sentence should be imposed - Non-parole period where protection of community is principal purpose for which sentence is imposed - Crimes Act 1958, s.19 - Sentencing Act 1991, ss.5(2AA)(a), 6D, 6E, 16(3B), 18B.

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