EDM v The Queen

[2010] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0971

EDM
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE, HANSEN JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2010
DATE OF ORDERS:	11 November 2010
DATE OF REASONS FOR JUDGMENT	29 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 308
JUDGMENT APPEALED FROM:	R v EDM (Unreported, County Court of Victoria, Judge Lacava, 19 December 2008)

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CRIMINAL LAW – Sentencing – Indecent act with a child under 16 years – Indecent act with a 16 year old – Producing child pornography – Cumulation orders challenged – Total effective sentence of four years and three months’ imprisonment with non-parole period of two years and nine months not manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S A Moglia	Mr P Clarebrough
For the Crown	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I have had the benefit of reading in draft the reasons of Ross AJA.  In substance, they accord with my reasons for joining in the order made by the Court on 11 November 2010 that the appeal be dismissed.

HANSEN JA:

1. I agree with Ross AJA, whose reasons accord in substance with my reasons for joining in the orders made on 11 November 2010. 

ROSS AJA:

Introduction

1. On 11 November 2010 the Court ordered that the appeal be dismissed with reasons to be published at a later date.  The following are my reasons.

1. On 15 April 2008 the appellant, EDM, pleaded guilty in the County Court to committing an indecent act with a child under the age of 16 years (count 1);  two counts of committing an indecent act with a 16 year old child (counts 2 and 3);  one count of producing child pornography (count 4) and one count of possessing Cannabis L (count 5).

1. On 19 December 2008 the appellant was sentenced to two years’ imprisonment on count 1;  18 months’ imprisonment on count 2;  18 months’ imprisonment on count 3 and one year’s imprisonment on count 4.  A fine of $100 was imposed in respect of count 5.  The judge ordered that nine months of the sentence imposed on count 2;  12 months of the sentence imposed on count 3;  and six months of the sentence imposed on count 4, were to be served cumulatively on the sentence imposed on count 1.

1. The cumulation orders produced a total effective sentence of four years and three months’ imprisonment.  The sentencing judge fixed a non-parole period of

two years and nine months’ imprisonment.  The judge also stated that had the appellant not pleaded guilty he would have imposed a total effective sentence of six and a half years’ imprisonment with a non-parole period of four and a half years.

1. Before turning to the grounds of appeal it is convenient to briefly set out the circumstances of the offending.

1. The offending took place over the period from…