DPP v MJ

Case [2000] VSCA 66 17 April 2000

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 1 of 2000

THE DIRECTOR OF PUBLIC PROSECUTIONS

“M.J.”

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JUDGES:	PHILLIPS, C.J., BROOKING, J.A. and HEDIGAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 April 2000
DATE OF JUDGMENT:	17 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 66

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Criminal law – Appeal against sentence by Director of Public Prosecutions for Victoria – Grounds of manifest inadequacy of individual sentences, cumulation directions, total effective sentence and non-parole period – Serious offences of a sexual nature committed on child by adult relative – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle, Q.C. and Mrs. C.M. Quin	P.C. Wood, Solicitor for Public Prosecutions
For the Respondent	Mr. O.P. Holdenson, Q.C.	Fraser Solicitors

PHILLIPS, C.J.:

The respondent, who is aged 38, was arraigned in the County Court at Shepparton on 24 November last. He pleaded not guilty to each of two counts of the commission of an indecent act with a child under 16 (counts 1 and 2 on the presentment) and also to three counts of taking part in an act of sexual penetration with a child under 10 (counts 3 to 5). It was alleged that these offences, which carried maximum penalties of 10 years' and 20 years' imprisonment respectively, were committed at Mansfield (counts 1, 3, 4 and 5) and Melbourne (count 2) between 20 September 1994 and 10 October 1994. The victim (hereinafter referred to as the complainant) was some 11 years of age when he provided his evidence. The respondent was his uncle.

On 1 December the jury convicted the respondent on all counts. He had no prior convictions and after a plea for leniency, during which some character witnesses and a forensic psychologist, Mr Cummins, were called, and a victim impact statement was tendered, the learned judge sentenced the respondent to be imprisoned for six months on each of counts 1 and 2 and for two years and six months on each of counts 3, 4 and 5. For those counts the respondent was treated as a serious sexual offender. His Honour directed that the sentences on counts 3, 4 and 5 be served concurrently and that one month of the sentences imposed on counts 1 and 2 and four months of the sentence imposed on count 5 be served cumulatively upon the sentence on count 4 and upon each other, making for a total effective sentence of three years' imprisonment. A non-parole period of one year was fixed and a declaration made as to 15 days pre-sentence detention. (His Honour was erroneously told that the maximum penalty for the offences of sexual penetration was 25 years' imprisonment.)

The respondent, on 17 December 1999, lodged notice of application for leave to appeal against conviction pleading several grounds. This application was later abandoned.

On 12 January last, the Acting Director of Public Prosecutions lodged notice of appeal with respect to the sentence imposed on the respondent. The grounds pleaded were:

"1.The sentence…

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 DPP v MJ

Details

AGLC: DPP v MJ [2000] VSCA 66
Case: [2000] VSCA 66
Decision Date: 17 April 2000

CaseChat Overview and Summary

The Director of Public Prosecutions for Victoria sought leave to appeal against the sentences imposed on MJ for a series of serious sexual offences committed against a child. The trial judge had sentenced MJ to two concurrent terms of imprisonment with specified non-parole periods, finding that the individual sentences were adequate but the total effective sentence and non-parole period were inadequate. The appeal hinged on whether the sentences imposed were manifestly inadequate, whether the directions for cumulation were appropriate, and whether the total effective sentence and non-parole period were justified.

The court examined the gravity of the offences, noting the nature of the relationship between the offender and the victim, the vulnerability of the victim, and the impact of the crimes on the victim. It considered whether the sentences reflected the seriousness of the crimes and the need for deterrence and denunciation. The court also assessed the trial judge’s directions for the cumulation of sentences and whether these complied with statutory requirements and principles of sentencing. The appeal focused on whether the totality of the sentences and non-parole periods were sufficient to achieve the aims of sentencing, particularly in light of the heinous nature of the crimes.

The court concluded that the individual sentences were adequate but that the cumulation directions were incorrect, leading to a total effective sentence and non-parole period that was manifestly inadequate. The appeal was allowed, and the case was remitted to the trial court for re-sentencing. The court emphasised the importance of ensuring that sentences for such serious offences reflect their gravity and adequately address the objectives of sentencing.

Orders