M G P v The Queen
[2011] VSCA 321
•20 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0238
| M G P |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
---
| JUDGES | MAXWELL P and HARPER JA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 20 October 2011 | |
| DATE OF JUDGMENT | 20 October 2011 | |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 321 | |
| JUDGMENT APPEALED FROM | DPP v [M G P] (Unreported, County Court of Victoria, Judge Gaynor, 30 September 2011) | |
---
CRIMINAL LAW – Sentence – Indecent assault – Offending occurred more than 40 years ago - Plea of guilty – Third party hardship – Exceptional circumstances - Sentenced to imprisonment for 18 months with 16 months suspended for two years - Applicant aged 81 years when sentenced – Fresh evidence – Applicant’s wife gravely ill – Effect of applicant’s incarceration on his wife’s health and life expectancy – Appeal allowed and applicant re-sentenced.
---
| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr R Backwell | Lewenberg & Lewenberg |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I invite Harper JA to give the first judgment.
HARPER JA:
The applicant seeks leave to appeal against a sentence of 18 months' imprisonment imposed upon him on 30 September 2011, following his plea of guilty to one charge of indecent assault. His victim was his goddaughter, then about 11 years of age. The offending, which took place between 1968 and 1969, was recurrent over that period. The single charge was therefore representative of that offending; and the sentencing judge dealt with it on that basis.
The applicant was born on 4 February 1930. He is therefore now 81 years old. His wife is 79. Her health is poor. Indeed, in a report dated 30 August 2011 from her treating general practitioner, she was described as
incredibly sick requiring continuous oxygen due to the damage done to her lungs. She will not recover from this, but will continue to gradually deteriorate over time.
The report then records that without the applicant's support, his wife 'would not be able to cope at home by herself and would have to be placed in supported accommodation.’ She (the applicant’s wife) had been assessed as requiring the highest level of aged care. This, the report continues,
essentially means that [the applicant's wife] is suitable for nursing home care only and this would be the only option if [the applicant] was no longer able to care for her. It also informs us of the level of care that [the applicant] is providing to [his wife]. If the two were separated …[i]t is possible that she would end up severely distressed and depressed. … With such an upheaval in her life and that of [the applicant], I am sure it would negatively impact upon [the applicant’s wife's] health and hasten her death (in a very distressing way).
The above may sound very emotional - but the two are very co‑dependent. The impact of a forced separation would be enormous.
This report was before her Honour the sentencing judge at the time the sentence was imposed. Her Honour said of it in her reasons for sentence:
Having received the latest material and the report as to the situation of your wife in hospital, I am now satisfied that her plight is one which can be described as falling into exceptional circumstances in terms of hardship. She is clearly an extremely ill woman. I am satisfied on the material before me that her continued separation from you will likely hasten her death and in those circumstances it must be the situation that the circumstances are exceptional. [1]
[1]Reasons, [18].
With respect, it seems to me that her Honour was entirely justified in coming to the conclusions expressed by her in that passage.
It is settled law that the impact on an offender's dependants of the incarceration of that offender will not generally be a ground for a reduction in what would otherwise be an appropriate sentence. The circumstances must be exceptional before they can be taken into account as reducing an otherwise proper sentencing disposition. In my opinion her Honour appropriately recognised this in her decision to wholly suspend, for a period of two years, 16 months of the total of 18 months' imprisonment which she imposed upon the applicant.
Since the applicant was sentenced on 30 September this year, a further report has been received by the Court. That report is under cover of an affidavit affirmed by Avi Furstenberg on 19 October 2011, in which he deposes to his receipt of a report from the general practitioner attending the wife, that report being dated 17 October this year. In it the doctor says, amongst other things, the following:
[The applicant's wife] had a further admission to hospital on 30 September 2011 and [was] discharged on 10 October 2011. The reason for the admission was due to infection in her chest …
and the report continues to detail that problem and to record that she spent 10 days in hospital. The doctor then continues:
It is my medical opinion that the decline in her health causing her hospitalisation was largely attributable to the forced separation from [the applicant] and the amount of stress that the court proceedings have placed on the pair.
The sentence not only affects [the applicant] but is having a profound effect on [his wife]. Trying not to sound melodramatic, her health is not good and given the recent decline attributable to the separation, she may not survive the separation of two months.
This was material which was not before her Honour when her Honour sentenced the applicant. Mr Silbert SC for the Crown has fairly acknowledged that it is properly to be regarded by this Court as fresh evidence upon which this Court should act.
It seems to me that that concession was appropriate. It also seems to me that the fresh evidence is significant. Her Honour the sentencing judge had before her material suggesting that the applicant’s imprisonment might hasten his wife’s death. She was not, however, aware that the applicant’s wife might not survive the two months of his actual incarceration. In those circumstances it is, I think, appropriate that the sentencing discretion be reopened, and that the applicant be re‑sentenced.
I would propose that the applicant be sentenced to 18 months' imprisonment but with all but the period already served being suspended for two years.
MAXWELL P:
I agree. For the reasons which his Honour has given, I would also re‑sentence the applicant as proposed. I would add just these short matters.
Inevitably in an application like this attention is focused on the convicted person and his family. It is important that we acknowledge, as the sentencing judge did, the devastating effect of this offending on the victim, as is recorded in the following extract from her Honour’s reasons:
The fact of the matter is […] you may have no prior convictions but you committed a dreadful crime all those years ago and then simply went on to lead, it would seem, a contented life of employment, of family life, of marriage, of grandchildren. [The complainant], however, has struggled with almost every aspect of her emotional life because of what you did. She has endured years and years of suffering. That is why, when it comes to consider the situation that you are in, which is undoubtedly pitiable; an 81 year old man, a devoted carer to his wife who is incredibly ill, it is difficult for me and quite in line with the authorities to look at your situation in isolation from the dreadful years of suffering that you have caused your victim.[2]
[2]Reasons, [26].
In my respectful opinion, this was an exemplary set of sentencing reasons, dealing with very difficult, conflicting considerations. Her Honour had to deal with the seriousness of the offending and the effect on the victim, on the one hand, and the pitiable situation of the applicant and in particular his wife, on the other. As the authorities make clear, the receipt of fresh evidence of this kind reopens the discretion, not because there was any error at first instance but because we have information which the sentencing judge did not have, which elucidates a matter agitated on the plea.[3]
[3]See, eg, R v Duy Duc Nguyen [2006] VSCA 184, [44].
But for the fresh evidence, I would have regarded this sentence as unimpeachable. Like Harper JA, however, I consider this is an occasion for the exercise of mercy which the exceptional circumstances test permits.[4] Moreover, the additional information justifies us in taking a different view from the sentencing judge. The applicant's wife is also an innocent victim of his appalling conduct. The real prospect that she might die during, and because of, his incarceration is a matter which, in my opinion, justifies the suspension of the remaining term.
[4]Markovic v The Queen [2010] VSCA 105, [5].
I would conclude by acknowledging the initiative taken by those representing the applicant, and by staff in the Court of Appeal Registry, to have this matter brought on promptly so that, as far as possible, consideration could be given to the submission that there be a merciful intervention. This Court will always strive to make sure that matters of pressing concern like this are given the highest priority.
It follows that the orders of the Court will be these:
1. The application for leave to appeal is allowed.
2. The appeal is treated as having been instituted and heard instanter and allowed.
3. The sentence imposed in the Court below is set aside. In lieu of the sentence imposed, we sentence the appellant to 18 months' imprisonment on the charge of indecent assault and we order that the whole of that sentence, other than the period served up to this day, be suspended for a period of two years.
4. We will make the same declaration pursuant to s.6AAA as her Honour made, that is, we would have sentenced the appellant to a term of imprisonment of 18 months and ordered that 12 months of the sentence be wholly suspended.
‑ ‑ ‑
0
2
0