M M v the Queen
[2010] VSCA 176
•29 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 683A of 2008
| MM | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 June 2010 | |
DATE OF JUDGMENT: | 29 June 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 176 | |
JUDGMENT APPEALED FROM: | R v MM (Unreported, County Court of Victoria, Judge Hampel, 3 June 2008) | |
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CRIMINAL LAW – Sentencing – Sexual offences against step-daughter – Fresh evidence conceded – No justification for altering sentence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Victoria Legal Aid |
| For the Crown | Ms D T Piekusis | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
On 3 June 2008 in the County Court at Melbourne, MM was sentenced to a total of six years and seven months’ imprisonment with a minimum of three years after he pleaded guilty to seven counts of various types of sexual molestation of his step-daughter. The offences were committed over a period spanning about nine years, commencing in 1984 when the step-daughter was three years old. None of the offences involved sexual penetration as that term is defined in s 35 of the Crimes Act 1958, but were nonetheless horrific from the victim’s point of view and had catastrophic consequences for her and her family.
As the only ground of appeal now concerns the health of the appellant, there is no need to describe his offences individually or in more detail. It is enough to say that they involved regular sexual assaults against a little girl which continued for virtually the whole of the first decade of her life and the fifth decade of his. The victim is now a woman in her late twenties who is still trying to come to terms with what happened to her.
MM was granted leave to appeal his sentence by a single judge of this Court on 19 June 2009 upon a concession made by the Crown as to the arguability of the only ground of appeal now concerning the Court.
In his plea before the sentencing judge, counsel for the appellant relied upon written psychological and other medical evidence. The appellant suffers from Parkinson’s disease, a neurological pathology which affects motor skills, speech and other functions. He was first diagnosed with it at or about the time that his assaults on his step-daughter ceased, upon their being discovered. Associate Professor Kempster of Monash Neurology has treated the appellant for his Parkinson’s disease since 2003. His opinion of 31 March 2008 was before the sentencing judge. He
regarded the appellant’s condition as complex and progressive, further complicated by difficulties associated with the inconsistencies in his responses to drug treatment. Associate Professor Kempster referred to the burden of a custodial sentence upon the appellant, a matter referred to and acted upon by the sentencing judge.
As well as this neurological opinion, the sentencing judge had the benefit of extensive psychological reports from Mr Jeffrey Cummins, a forensic psychologist, and Ms Julie-Anne Peake, a psychologist who had treated the appellant for depression over 31 sessions from June 2006 to April 2008. Mr Cummins report of 31 March 2008 was, in the circumstances, unremarkable. He regarded the appellant as having engaged in extensive paedophilic offending over a long time and he noted another episode of, probably less serious, sexual assault against a six year old boy of which the appellant was found guilty in 2007. For this offending he was given a non-custodial sentence. Ms Peake’s opinion, written from a treating psychologist’s point of view, was not dissimilar to Mr Cummins. Both psychologists referred to the appellant’s episodes of depression which had led to a suicide attempt in 2006.
The appellant’s remaining ground of appeal before this Court concerns an alleged significant deterioration in his physical and mental health since his incarceration, such that he should be permitted to put evidence of such deterioration before this Court and have it review his sentence; because when he was sentenced originally such deterioration was not and could not have been foreseen. He relies particularly on three medical reports from St Vincent’s Hospital written on 20 June 2008, 5 January 2009 and 24 June 2009.
The first of these reports (erroneously dated 3 June 2008, the date of his sentence) records his treatment as an inpatient at St John’s, the St Vincent’s medical facility at Port Phillip Prison. Apart from a reference to his medication and an episode of chest pain which caused an emergency hospital admission a few days after his imprisonment commenced, this report adds nothing to what was before the sentencing judge.
The second St Vincent’s report of 5 January 2009 records a further hospital admission of the appellant for his clinically deteriorating Parkinson’s disease during which admission he attempted suicide. On this occasion her reported episodes of hallucinations for which he received psychiatric attention. The third St Vincent’s report of 24 June 2009 noted that the appellant remained in St John’s, that his Parkinson’s disease symptoms were reasonably controlled, and that an acute episode of psychosis in June 2009 had resolved with treatment.
Any difficulties the appellant might have had in persuading the Court to exercise its discretion in his favour to admit the evidence contained in the St Vincent’s reports that he has suffered from a psychosis since being incarcerated, were removed by a concession made by the Crown that such evidence constituted fresh evidence within the meaning of cases such as R v Eliasen[1], R v Alashkar[2], R v Nguyen[3] or Giordano v The Queen[4], so as to permit its reception. Once admitted, this Court must determine whether on all the material now before the Court, that is to say that before the sentencing judge and the new evidence now admitted, any different sentence should be substituted for that which she imposed.
[1](1991) 53 A Crim R 391.
[2](2007) 2 VR 79.
[3][2006] VSCA 184.
[4][2010] VSCA 101.
There is no doubt that the appellant is an unwell man with a probably much reduced life expectancy for whom imprisonment is a greater burden than it might be for someone not so afflicted. The sentencing judge was well aware of this and ameliorated the sentence she imposed accordingly, both as to the total effective sentence and as to the non-parole period. In particular, she imposed a very merciful non-parole period of three years for what were on any view horrific offences committed over a very long period against a child for whom the appellant had the responsibility of fatherhood.
In considering this matter it must be assumed that the Corrections authorities
will discharge their legal duties to the appellant whilst he is gaol. The medical conditions suffered by him, it must also be assumed, including his psychosis if it is persisting or if it returns, will be adequately and appropriately treated. The St Vincent’s reports suggest that that is what has happened to date.
Taking into account the sentencing judge’s reasons for imposing the sentence which she did, the fresh evidence now before the Court and the submissions made by counsel on the appellant’s behalf, there is no requirement to alter the sentence imposed by the sentencing judge to avoid a miscarriage of justice. I would dismiss this appeal.
BUCHANAN JA:
I agree.
The order of the Court is that the appeal is dismissed.
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