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IRJ v The Queen

IRJ v The Queen

Case [2011] VSCA 376 22 November 2011

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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…

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 IRJ v The Queen

Details

AGLC: IRJ v The Queen [2011] VSCA 376
Case: [2011] VSCA 376
Decision Date: 22 November 2011

CaseChat Overview and Summary

The appellant, IRJ, was convicted and sentenced to a total effective term of 11 years' imprisonment, with a non-parole period of 9 years, for engaging in an indecent act with a child, procuring a child for child pornography, and possessing child pornography. The appeal was against both the sentence and conviction, but the High Court only considered the appeal against the sentence. The Court of Appeal had dismissed the appeal against the sentence, and the appellant sought special leave to appeal to the High Court.

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