SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0122
| J B M | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG AND PRIEST JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 February 2013 |
| DATE OF JUDGMENT | 28 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 69 |
| JUDGMENT APPEALED FROM | R v [J B M] (Unreported, County Court of Victoria, Judge Montgomery, 1 May 2012) |
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CRIMINAL LAW — Appeal against sentence — Appellant pleaded guilty to one count of sexual penetration of, and one count of indecent act with, his three year old niece — Representative counts — Total effective sentence of seven years’ imprisonment with non-parole period of four years and six months — Whether sentence manifestly excessive — Offending involving gross breach of trust — Deficiencies in complainant’s evidence owing to her youth — Evidence of complainant insufficient to enable prosecution to be brought — Appellant made full admissions when interviewed by police — Whether sufficient weight given to extent of cooperation, and fact of admissions made — Appellant entitled to ‘demonstrable discount’ greater than that ordinarily given for plea of guilty — Whether such discount not reflected in sentence ultimately imposed — Appeal allowed — Appellant resentenced to total effective sentence of five years and six months’ imprisonment with non-parole period of three years and six months — R v Doran [2005] VSCA 271, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J D Kantor | Kerry Clancy Solicitor |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor For Public Prosecutions |
WEINBERG JA:
On 24 January 2012, the appellant, J B M, then aged 52, pleaded guilty in the County Court at Wodonga to two charges involving sexual offending against his niece, who was aged only three at the relevant times.[1]
[1]The indictment covered a short period during which the complainant was aged only two, but it seems to have been accepted that the offending occurred shortly after she turned three.
On 1 May 2012, the appellant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Sexual penetration of child under 16
[Crimes Act 1958 (Vic) s 45(1)]25 years
[Crimes Act 1958 (Vic) s 45(2)(a)]5 years 6 months Base 2 Indecent act with child under 16
[Crimes Act 1958 (Vic) s 47(1)]10 years
[Crimes Act 1958 (Vic) s 47(1)]3 years 1 year 6 months Total Effective Sentence: 7 years’ imprisonment Non-Parole Period: 4 years and 6 months Pre-sentence Detention Declared: 11 days 6AAA Statement: 9 years’ imprisonment, with a non-parole period of 7 years Other orders:
Forensic sample order.
Sex offenders registration – life reporting.
On 31 October 2012, Priest JA granted leave to appeal on the following ground:
The total effective sentence, the individual sentences on charges 1 and 2, the non-parole period and the order for cumulation are each manifestly excessive.
The particulars of manifest excess relied upon were first that inadequate weight had been given to the fact that…
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- JBM v The Queen [2013] VSCA 69
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- [2013] VSCA 69
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CaseChat Overview and Summary
The legal issues included whether the sentence imposed was manifestly excessive, whether sufficient weight was given to the appellant's cooperation and admissions, and whether a greater discount for the plea of guilty was warranted. The court considered the nature of the offences, the age of the complainant, the deficiencies in her evidence, and the appellant's admissions to the police. The appellant argued that the sentence did not reflect the extent of his cooperation and admissions, and that he was entitled to a greater discount for his plea of guilty.
The Court of Appeal found that the sentence was manifestly excessive and that the primary judge had not given sufficient weight to the extent of the appellant's cooperation and admissions. The court applied the principles in R v Doran and concluded that a greater discount for the plea of guilty was warranted. The appeal was allowed, and the appellant was resentenced to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and six months.
The final orders included the appellant's resentencing to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and six months.
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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