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GEM v The Queen

GEM v The Queen

Case [2010] VSCA 168 1 July 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 0687 of 2008

GEM	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P AND WEINBERG JA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 June 2010
DATE OF JUDGMENT	1 July 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 168
JUDGMENT APPEALED FROM	R v [GEM] (Unreported, County Court of Victoria, Judge Jenkins, 13 June 2008)

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CRIMINAL LAW – Appeal – Sentence – Two counts of indecent assault – Three counts of incest – Sentenced to nine years and three months’ imprisonment with a non-parole period of six years and six months – Ostensible bias – Delay – Weight afforded to sexual abuse suffered by Appellant – Taking into account victim impact statement – Construction of sentence – Sentence not manifestly excessive – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr P.G. Priest QC with Ms R. Shann	Galbally & O’Bryan Lawyers
For the Crown	Mr B.L. Sonnet	Mr C. Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

The appellant, GEM, pleaded guilty in the County Court at Melbourne to two counts of indecent assault upon a girl below the age of 16 (counts 1 and 2), and three counts of incest (counts 3, 4 and 5). The victim of these offences was his step-daughter, SH, who was aged, at the time of the offences (between 1977 and 1980), between 12 and 15. The maximum penalty for indecent assault at the relevant time was five years’ imprisonment, and for incest, 20 years.

Each of the counts to which the appellant pleaded guilty was designated as ‘representative’. The sentences imposed were as follows:

COUNT	OFFENCE	MAXIMUM	SENTENCE	CUMULATION
1	Indecent assault	5 years	8 months	3 months
2	Indecent assault	5 years	18 months	6 months
3	Incest	20 years	42 months	18 months
4	Incest	20 years	4 years	2 years
5	Incest	20 years	5 years	Base
Total effective sentence: 9 years 3 months Non-parole period: 6 years 6 months The appellant was declared a serious sexual offender in respect of counts 3, 4 and 5.

Circumstances surrounding the offending

In 1976, the appellant married the complainant’s mother. The complainant, who was born in 1965, was 11 years old at the time.

The conduct giving rise to count 1 occurred between 11 July 1977 and 31 July 1977. According to the complainant, the appellant repeatedly touched her breast outside her clothing whilst purporting to wrestle with her. This conduct was said to have taken place at least two to three times a week during that period.

With regard to count 2, the evidence was that, in the period between 11 July 1977 and 31 December 1977, the appellant regularly entered the complainant’s bedroom after she had gone to bed. He would talk to her, then pull the blankets back, unbutton her nightie and fondle her breasts. He would then pull down her underwear and fondle her vagina with his fingers. He would then penetrate her vagina with his finger.…

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 GEM v The Queen

Details

AGLC: GEM v The Queen [2010] VSCA 168
Case: [2010] VSCA 168
Decision Date: 1 July 2010

CaseChat Overview and Summary

In this case, the appellant, GEM, was convicted on two counts of indecent assault and three counts of incest. The matter was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed by the trial judge was manifestly excessive and whether there was any ostensible bias in the trial judge's handling of the case. The appellant also argued that the delay in the proceedings affected the fairness of the trial.

The court examined the trial judge's assessment of the appropriate sentence, taking into account the appellant's history, the nature of the crimes, and the impact of the crimes on the victims. The court noted that the trial judge had appropriately considered the sexual abuse suffered by the appellant and the victim impact statement. The court held that the sentence was not manifestly excessive and that the trial judge had not displayed any ostensible bias. The court also found that the delay did not undermine the fairness of the trial.

Given the careful consideration by the trial judge of all relevant factors, the High Court dismissed the appeal. The original sentence of nine years and three months’ imprisonment with a non-parole period of six years and six months was upheld. The court affirmed that the sentence was appropriate and did not reflect any error in the trial judge's handling of the case.

Orders