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Cummins (a pseudonym) v The Queen

Cummins (a pseudonym) v The Queen

Case [2013] VSCA 352 15 October 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0014

WALLACE CUMMINS (A PSEUDONYM)
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	REDLICH, WEINBERG AND PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 October 2013
DATE OF JUDGMENT	15 October 2013
DATE OF REASONS	6 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 352
JUDGMENT APPEALED FROM	DPP v [Cummins] (Unreported, County Court of Victoria, Judge Gaynor, 11 March 2011)

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CRIMINAL LAW – Appeal against sentence – Maintain sexual relationship with child under 16 – Indecent assault – Multiple charges of indecent act with child under 16 – Total effective sentence of 13 years and 6 months’ imprisonment with a non-parole period of 11 years and 6 months’ imprisonment – Whether sentence manifestly excessive – Whether sentences inconsistent with current sentencing practices – Whether sentencing judge gave sufficient weight to plea of guilty – Whether ratio of non-parole period to head sentence excessive – Crown’s submissions as to sentencing range too high – Such stern sentences reserved for cases involving multiple acts of sexual penetration – Orders for cumulation in breach of principle of totality – Saab v The Queen [2012] VSCA 165; R v MacNeil-Brown (2008) 20 VR 677; BM v The Queen [2013] VSCA 3; Ashdown v The Queen (2011) 219 A Crim R 454 – Crimes Act 1958 ss 39, 47(1) and 47A – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C T Carr	Victoria Legal Aid
For the Crown	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA
WEINBERG JA
PRIEST JA:

On 25 February 2011 the appellant, who is now aged 70, pleaded guilty in the County Court at Melbourne to various sexual offences against his granddaughters, JM and TM. Following a plea that was conducted on that same day, he was sentenced some two weeks later, on 11 March 2011, as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1.              Maintain sexual relationship with child under 16 [Crimes Act 1958 s 47A(1)][1]
25 years’ imprisonment
9 years Base sentence

2.              Indecent assault [Crimes Act 1958 s 39] 10 years 9 months 4 months

3.              Indecent act with child under 16 [Crimes Act 1958 s 47(1)] 10 years 12 months 8 months

4.              Indecent act with child under 16 10 years 15 months 12 months

5.              Indecent act with child under 16 10 years 2 years 15 months

6.              Indecent act with child under 16 10 years 6 months 2 months

7.              Indecent act with child under 16 10 years 18 months 5 months

8.              Indecent act with child under 16 10 years 9 months 4 months

9.              Indecent act with child under 16 10 years 9 months 4 months

Total Effective Sentence: 13 years and 6 months’ imprisonment

Non-Parole Period: 11 years and 6 months’ imprisonment

Pre-sentence Detention Declared: 14 days

6AAA Statement: 14 years and 6 months’ imprisonment, with non-parole period of 12 years and 6…

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 Cummins (a pseudonym) v The Queen

Details

AGLC: Cummins (a pseudonym) v The Queen [2013] VSCA 352
Case: [2013] VSCA 352
Decision Date: 15 October 2013

CaseChat Overview and Summary

The case of Cummins v The Queen involved an appeal by the appellant against his sentence for multiple charges of maintaining a sexual relationship with a child under 16 and committing indecent acts with that child. The case was heard in the Victorian Court of Appeal. The appellant was sentenced to a total effective term of imprisonment of 13 years and 6 months, with a non-parole period of 11 years and 6 months. The central issues before the court were whether the sentence was manifestly excessive, inconsistent with current sentencing practices, and if the sentencing judge appropriately considered the appellant's plea of guilty. Additionally, the court examined whether the ratio of the non-parole period to the head sentence was excessive and if the Crown's proposed sentencing range was too high.

The court found that the original sentence was manifestly excessive, and the sentencing judge did not adequately consider the appellant's plea of guilty. The court emphasised that sentences involving cumulation should adhere to the principle of totality, as per cases such as Saab v The Queen and BM v The Queen. The court also noted that the ratio of the non-parole period to the head sentence was excessive, and that such severe sentences are generally reserved for cases involving multiple acts of sexual penetration. Consequently, the appeal was allowed, and the appellant was re-sentenced.

Orders