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JBM v The Queen

JBM v The Queen

Case [2013] VSCA 69 28 March 2013

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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…

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 JBM v The Queen

Details

AGLC: JBM v The Queen [2013] VSCA 69
Case: [2013] VSCA 69
Decision Date: 28 March 2013

CaseChat Overview and Summary

The appellant, JBM, appealed against his sentence following his conviction for sexual penetration of and an indecent act with his three-year-old niece. The primary judge found that the offences were of such a serious nature as to warrant a sentence in the higher range of culpability, and sentenced JBM to a total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months. The appeal focused on whether the sentence was manifestly excessive.

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