SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0470 | |
| I R J | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BONGIORNO JA and ROSS AJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 8 November 2011 | |
| DATE OF JUDGMENT | 22 November 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 376 | |
| JUDGMENT APPEALED FROM | DPP v I R J (Unreported, County Court of Victoria, Judge Douglas, 15 December 2010) | |
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CRIMINAL LAW – Sentence appeal – Indecent act – Incest – Possession of child pornography – Procuring a child for child pornography – Total effective sentence of 11 years’ imprisonment with a non-parole period of 9 years – Cumulation – Manifest excess – Totality – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr S Cooper | Mr C Hyland, solicitor for Public Prosecutions |
BONGIORNO JA:
I agree with Ross AJA.
ROSS AJA:
On 9 July 2010 the appellant pleaded guilty in the County Court to seven charges of an indecent act with or in the presence of a child under 16, four charges of incest, one charge of possession of child pornography, one charge of procuring a child for pornography, and one charge of production of child pornography. On 15 December 2010 he was sentenced as follows:
Charge 1
Indecent act
2 years 6 months’ imprisonment
4 months cumulative
Charge 2
Indecent act
2 years’ imprisonment
4 months cumulative
Charge 3
Possession of child pornography
1 years’ imprisonment
Charge 4
Incest
4 years and 6 months’ imprisonment
5 years and 6 months’ (Base sentence)
Charge 5
Indecent act
3 years’ imprisonment
4 months cumulative
Charge 6
Indecent act
3 years’ imprisonment
4 months cumulative
Charge 7
Indecent act
3 years’ imprisonment
4 months cumulative
Charge 8
Indecent act
3 years’ imprisonment
4 months cumulative
Charge 9
Incest
5 years and 6 months’ imprisonment
1 year cumulative
Charge 10
Incest
5 years and 6 months’
1 year cumulative
Charge 11
Indecent act
3 years
4 months cumulative
Charge 12
Incest
5 years and 6 months’
1 year cumulative
Charge 13
Procuring a child for pornography
2 years and 6 months’
2 months cumulative
Charge 14
Production of child pornography
2 years and 6 months’
The total effective sentence was 11 years’ imprisonment. The sentencing judge fixed a non-parole period of 9 years’ imprisonment. Her Honour also stated that but
for the plea of guilty she would have imposed a total effective sentence of 13 years’ imprisonment with a non-parole period of 11 years’ imprisonment.
Three grounds of appeal were originally advanced:
Ground 1: The learned sentencing judge erred in finding, beyond reasonable doubt, that the applicant was a paedophile;
Ground 2: The learned sentencing judge erred in imposing a non-parole period which was, proportionate to the total effective sentence, so high as to bespeak error;
Ground 3: The individual sentences, total effective sentence and non parole period are each manifestly excessive.
On 18 May 2011 Ashley JA granted…
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- AGLC
- IRJ v The Queen [2011] VSCA 376
- Case
- [2011] VSCA 376
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether the sentence was a manifest excess of judicial discretion and whether the totality principle was violated. The appeal against the conviction was not considered as it was not the subject of special leave. The appellant argued that the sentence was a manifest excess of judicial discretion due to the cumulative effect of the sentences for each offence, and that the totality principle was breached because the sentence did not adequately reflect the appellant's culpability.
The High Court held that the sentence was not a manifest excess of judicial discretion. The Court considered the cumulative effect of the sentences for each offence and determined that the sentence was not manifestly excessive. The Court also held that the totality principle was not breached because the sentence reflected the appellant's culpability and the seriousness of the offences. The Court found no point of principle in the appeal against the sentence, and the appeal was dismissed.
The High Court did not make any orders in relation to the appeal against the sentence, as the appeal was dismissed and no point of principle was found. The sentence of 11 years' imprisonment with a non-parole period of 9 years remains in place. The appeal against the conviction was not considered as it was not the subject of special leave.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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