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BM v The Queen

BM v The Queen

Case [2013] VSCA 3 17 January 2013

Criminal Liability

Aggravated & Exemplary Damages

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

B M	S APCR 2012 0156
	v
THE QUEEN

- - -

JUDGES:	MAXWELL P and WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 January 2013
DATE OF JUDGMENT:	17 January 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 3
JUDGMENT APPEALED FROM:	R v B M (Unreported, County Court of Victoria, Judge Cannon, 8 November 2011)

CRIMINAL LAW – Appeal – Sentence – Maintaining sexual relationship with child under 16 – Sentenced to 12 years’ imprisonment, non‑parole period 9 years – Offending on fortnightly access weekends over 10 years – Victim was applicant’s natural daughter – Offending began when daughter was 4, ended when she was 13 – Sexual penetration despite daughter’s protests – Intimidation – Manipulative and coercive behaviour – Whether age difference an aggravating factor – Whether exposure to risk of pregnancy and of sexually transmitted disease an aggravating factor – Whether sentence manifestly excessive – Appeal dismissed – Crimes Act 1958 (Vic) s 47A.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D Trood	Tony Hargraves & Partners
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

Introduction

The applicant pleaded guilty to one count of maintaining a sexual relationship with a child under 16. He was sentenced to 12 years’ imprisonment with a non‑parole period of nine years. He now seeks leave to appeal against sentence. For the following reasons, I would grant leave to appeal but dismiss the appeal.

The central complaint in the present case, although not the only ground of appeal, is that both the head sentence and the non‑parole period were manifestly excessive. As will appear, a sentence of 12 years is at the upper end of current sentencing practice for this offence. Given the aggravating circumstances to which I will refer, however, I consider that it was reasonably open to the sentencing judge to impose this sentence on this offender for this offending, proper regard being had to current sentencing practice.[1]
[1] DPP v Karazisis (2010) 206 A Crim R 14, 44 [127].

On an appeal against sentence, this is not a court of rehearing. Our function is a supervisory one, and we only interfere with a sentence where something has gone wrong in law. The question is not what decision we would have made had we been in the position of the sentencing judge, but whether the judge in sentencing has gone outside the legal limits applicable to her task.

The fact that we are in a position to deliver judgment so soon after the conclusion of argument is a reflection, not of any pre‑determination of the matters but of the quality of the material filed on the applicant’s behalf and the quality of the argument advanced by his counsel and by counsel for the Crown. A good deal of time and effort goes into the preparation of the written cases, which are provided to the Court in advance of the hearing. Whelan JA and…

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 BM v The Queen

Details

AGLC: BM v The Queen [2013] VSCA 3
Case: [2013] VSCA 3
Decision Date: 17 January 2013

CaseChat Overview and Summary

The appellant, BM, appealed against his conviction and sentence for maintaining a sexual relationship with his natural daughter over a decade, beginning when she was four years old and ending when she was thirteen. The case was heard in the Court of Appeal of Victoria. BM was sentenced to 12 years' imprisonment, with a non-parole period of 9 years. The legal issues central to this appeal included whether the age difference between the appellant and his victim constituted an aggravating factor, whether the exposure to the risk of pregnancy and sexually transmitted disease were additional aggravating circumstances, and whether the sentence imposed was manifestly excessive.

The Court of Appeal examined the appellant’s manipulative and coercive behaviour, which included the use of intimidation and threats, and the continuation of the abuse despite the victim’s protests. The court considered statutory provisions under the Crimes Act 1958 (Vic) s 47A, which addresses the severity of such offences. The appellant argued that the age difference, the risk of pregnancy, and the risk of sexually transmitted disease should not be considered as aggravating factors. However, the Court found these factors to be significant in the context of the crime. The court also evaluated the overall severity of the offending and the appropriate sentence, concluding that the sentence was proportionate and not manifestly excessive.

The appeal was dismissed by the Court of Appeal, which upheld the original sentence. The judges found that the trial judge had appropriately considered the aggravating factors and the overall harm caused by the appellant's actions. The court affirmed that the sentence was commensurate with the gravity of the offences committed. The appellant's appeal was thus unsuccessful, and the original sentence stood as affirmed.

Orders