E M T v The Queen - [2012] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0255

E M T
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG, HARPER JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 August 2012
DATE OF JUDGMENT:	21 August 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 193
JUDGMENT APPEALED FROM:	DPP v [EMT] (Unreported, County Court Of Victoria, Judge Tinney, 1 July 2011)

---

CRIMINAL LAW – Appeal against sentence – Appellant pleaded guilty to two charges of incest – Sentenced to 7 years 6 months’ imprisonment with a minimum non-parole period of 5 years – Whether minimum non-parole period manifestly excessive – Whether prospects of rehabilitation adequately reflected in minimum non-parole period – Representative charges – Very young victim – Grave offending – Minimum non-parole period within the acceptable range – Appeal dismissed – No point of principle.

---

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

WEINBERG JA:

I will invite T Forrest AJA to deliver the first judgment.

T. FORREST AJA:

On 3 March 2011, the appellant, now aged 33, pleaded guilty to two charges of incest. Following a plea which extended over three days, on 1 July 2011, the appellant was sentenced as follows:

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1 Incest 25 years
[Crimes Act 1958 s 44(1)] 6 years’ imprisonment Base sentence

2 Incest 25 years
[Crimes Act 1958 s 44(1)] 6 years’ imprisonment 1 year and 6 months’ imprisonment

3 Failing to Appear 12 months
[Bail Act 1977 s 30(1)] Fine of $300

Total Effective Sentence: 7 and a half years’ imprisonment

Non-Parole Period: 5 years’ imprisonment

Pre-sentence Detention Declare: 120 days

6AAA Statement: 10 years with a non parole period of 8 years

Other orders:

· Forensic sample ordered pursuant to s 464ZF of the Crimes Act 1958.

· Registration and 15 years of reporting imposed pursuant to s 34 of the Sex Offenders Registration Act 2004.

On 8 February 2012, Hansen JA granted the appellant leave to appeal on the sole ground that the sentence was manifestly excessive.

Factual background

The factual basis of the offending was summarised in his Honour’s sentencing remarks. The victim is the appellant’s daughter. Her mother and the appellant

ended their relationship in February 2001. Thereafter, the appellant enjoyed access arrangements every second weekend. The offending took place during these visits between 1 October 2004 and 31 October 2005. The victim was between six and a half and seven and a half years old during this period.

Charge 1 involved digital penetration of the victim’s vagina. Charge 2 involved penetration of her vagina by the tongue. Each charge was laid on a representative basis. It was agreed between the parties that each form of penetration occurred on approximately 12 occasions during the 13 month period referred to above.

The date nominated in both Charges 1 and 2 was 31 October 2005.…

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 E M T v The Queen

Details

AGLC: E M T v The Queen [2012] VSCA 193
Case: [2012] VSCA 193
Decision Date: 21 August 2012

CaseChat Overview and Summary

The appellant, E M T, appealed against his sentence following a guilty plea to two charges of incest. The case was heard by the High Court of Australia, which was asked to determine the appeal against the severity of the sentence. The appellant was sentenced to seven years and six months' imprisonment with a minimum non-parole period of five years. The legal issues before the court were whether the minimum non-parole period was manifestly excessive and whether the prospects of the appellant's rehabilitation were adequately reflected in the minimum non-parole period.

The court considered the nature and seriousness of the offences, the age of the victim, and the appellant's prospects of rehabilitation. It noted that the offences involved grave offending and a very young victim. The court also considered that the minimum non-parole period was within the acceptable range for such offences. The court found that the sentence imposed reflected the gravity of the offending and that the minimum non-parole period was not manifestly excessive. The court held that the sentence did adequately reflect the prospects of the appellant's rehabilitation. The court dismissed the appeal, finding no point of principle of general importance.

The court's decision was that the sentence imposed was appropriate and did not warrant alteration. The appeal was dismissed, and the original sentence was upheld.

Orders