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MA v The Queen

MA v The Queen

Case [2012] VSCA 214 7 September 2012

Indecent act with person under the age of 16

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0878

M A	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, BONGIORNO JJA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 June 2012
DATE OF JUDGMENT	7 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 214
JUDGMENT APPEALED FROM	R v [MA] (Unreported, County Court of Victoria, Judge Punshon, 28 October 2009)

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CRIMINAL LAW − Election to renew application for leave to appeal against conviction − Incest − Attempted incest − Indecent act with person under the age of 16 − Offences committed against step daughter − Whether unfairness caused by late admission of evidence of implied admission − Whether verdict unsafe and unsatisfactory − Relevance of applicant’s failure to give evidence − Weissensteinerv The Queen (1993) 178 CLR 217 considered − Application for leave to appeal granted − Appeal dismissed.

CRIMINAL LAW − Appeal against sentence − Sentence of nine years and three months’ imprisonment, with non-parole period of seven years and three months − Whether sentence manifestly excessive − Whether judge erred in failing to impose a sufficient gap between head sentence and non-parole period − Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The applicant, who is now aged 41, was found guilty by a County Court jury on 18 August 2009 of five counts of incest, one count of attempted incest, and one count of committing an indecent act with a child under 16, which allegedly occurred between 2004 and 2008. The complainant (‘T’), who is the applicant’s stepdaughter, was between 8 and 12 years old when the alleged offending occurred.

The applicant also pleaded guilty to a single count of possessing child pornography, arising out of a separate presentment.[1]
[1]The material the subject of the pornography count was unrelated to the complainant.

Following a plea in mitigation, the applicant was sentenced on 28 October 2009 as follows:

Count Offence Maximum Sentence Cumulation

X02792477.1A

1
Incest

Crimes Act 1958 s 44

25 years’ imprisonment

Crimes Act 1958 s 44(2)
5 years’ imprisonment 1 year

2
Incest

Crimes Act 1958 s 44

25 years’ imprisonment

Crimes Act 1958 s 44(2)
4 years and 6 months’ imprisonment 1 year

3
Incest

Crimes Act 1958 s 44

25 years’ imprisonment

Crimes Act 1958 s 44(2)
4 years and 6 months’ imprisonment 1 year

4
Incest

Crimes Act 1958 s 44

25 years’ imprisonment

Crimes Act 1958 s 44(2)
5 years’ imprisonment Base

5[2]
Attempted incest

Crimes Act 1958 s 44 & s 321M

20 years’ imprisonment

Crimes Act 1958 s 44(2) & s 321P(1)
4 years’ imprisonment 6 months
[2]Count 6, which alleged an indecent act against T, was an alternative to count 5.

Count Offence Maximum Sentence Cumulation

X02792477.1A

7
Incest

Crimes Act 1958 s 44

25 years’ imprisonment

Crimes Act 1958 s 44(2)
4 years and 6 months’ imprisonment 6 months

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 MA v The Queen

Details

AGLC: M A v The Queen [2012] VSCA 214
Case: [2012] VSCA 214
Decision Date: 7 September 2012

CaseChat Overview and Summary

The case of MA v The Queen involved the appellant, who was convicted of incest, attempted incest, and indecent acts with his stepdaughter. The appellant sought to renew an application for leave to appeal against his conviction and sentence. The High Court of Australia was tasked with determining whether the appeal against conviction should be allowed, and if not, whether the appeal against sentence should succeed.

The primary legal issue was whether the late admission of evidence regarding an implied admission by the appellant caused unfairness and led to an unsafe and unsatisfactory verdict. The court also considered whether the appellant's failure to give evidence impacted the appeal. The court examined the principle established in Weissensteiner v The Queen, where the unfairness caused by late admission of evidence was evaluated. The appellant argued that the late evidence had a significant impact on his case, while the respondent maintained that the evidence was not crucial to the verdict.

The court found that the late admission of evidence did cause unfairness and potentially impacted the verdict's safety and satisfaction. However, given the appellant's failure to give evidence and other substantial evidence against him, the court determined that the verdict remained safe and satisfactory. Consequently, the application for leave to appeal against conviction was granted, but the appeal was ultimately dismissed. Regarding the sentence appeal, the court found that the nine-year and three-month imprisonment sentence, with a non-parole period of seven years and three months, was not manifestly excessive. The court also found no error in the judge's decision regarding the gap between the head sentence and the non-parole period. Thus, the appeal against sentence was also dismissed.

In summary, the High Court of Australia granted the appellant leave to appeal against his conviction but dismissed both the appeal against conviction and the appeal against sentence.

Orders