Macfie v The Queen - [2012] VSCA 314

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2011 0233

JOHN WILLIAM MACFIE
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	HARPER and TATE JJA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2012
DATE OF JUDGMENT:	17 December 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 314
JUDGMENT APPEALED FROM:	DPP v Macfie (Unreported, County Court of Victoria, Judge Howie, 31 May 2011 (date of conviction) and 2 June 2011 (date of sentence))

---

CRIMINAL LAW – Conviction – Convictions for 41 sexual offences (sexual penetration of a child under 16, indecent act with or in the presence of a child under 16, procuring sexual penetration by fraudulent means and procuring sexual penetration by threats or intimidation) involving seven teenage girls and one conviction for threat to kill – Whether conviction for threat to kill unreasonable and/or not supported by the evidence – Renewed applications for leave to appeal against conviction – Whether indictment overloaded and unnecessarily complicated leading to a substantial miscarriage of justice – Whether trial judge’s charge unfair and unbalanced – Whether judge erred in refusing to discharge the jury – Appeal against threat to kill conviction allowed – Leave to appeal on other grounds refused.

CRIMINAL LAW – Sentence – Sexual penetration of a child under 16, indecent act with or in the presence of a child under 16, procuring sexual penetration by fraudulent means and procuring sexual penetration by threats or intimidation – Total effective sentence of 15 years and 7 months’ imprisonment – Non-parole period of 11 years – Whether sentencing judge failed to accord procedural fairness in refusing to adjourn the plea to enable medical or psychological reports to be obtained – Third occasion for prisoner to be sentenced for sexual offences against children – Prisoner aged 70 at time of sentence – Absence of remorse – Sentencing judge aware of and took into account the prisoner’s health issues – Whether, given medical report subsequently obtained, a different sentence should be imposed – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S A Moglia	Dribbin & Brown Criminal Law
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

By its verdicts, which were handed down on 31 May 2011 following a 21 day trial in the County Court, the jury in the most recent trial of the appellant (he has a history of sexual predation) found him guilty of 41 offences involving seven teenage girls. He was also convicted of making a threat to kill to one of them. All the events took place over a few weeks in April and May 2010.

A plea in mitigation was conducted on 1 June 2011. On the following day (2 June), the appellant was sentenced as set out in the table below:

Charge on Indictment (victim) Offence Maximum Sentence Cumulation

1 (LA) Sexual penetration of a child under 16 [Crimes Act 1958, s 45] 10 years 3 years 6 months

2 (LA)

Charge on Indictment (victim)	Offence	Maximum	Sentence	Cumulation
1 (LA)	Sexual penetration of a child under 16 [Crimes Act 1958, s 45]	10 years	3 years	6 months
2 (LA)

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 Macfie v The Queen

Details

AGLC: Macfie v The Queen [2012] VSCA 314
Case: [2012] VSCA 314
Decision Date: 17 December 2012

CaseChat Overview and Summary

The appellant, Macfie, appealed against his convictions and sentence for multiple sexual offences involving minors and a threat to kill. The case was heard in the High Court of Australia. The appeal against the convictions focused on the sufficiency of the evidence for the threat to kill conviction and the fairness of the trial process, while the appeal against the sentence argued for procedural fairness in obtaining medical reports before sentencing.

The primary legal issues were whether the conviction for threatening to kill was unreasonable and unsupported by evidence, and whether the trial was unfair due to an overloaded indictment, an unbalanced judge's charge, and the refusal to discharge the jury. Additionally, the appeal contested the procedural fairness of the sentencing process, arguing that the sentencing judge should have adjourned the plea to obtain medical or psychological reports.

The court found that the threat to kill conviction was unreasonable and not supported by the evidence, granting leave to appeal on this ground. However, the court rejected the other grounds for leave to appeal, including the claim that the indictment was overloaded and the trial was unfair. The court also dismissed the appeal against the sentence, finding no procedural unfairness in the sentencing process and noting that the sentencing judge had taken into account the appellant's health issues and age at the time of sentencing.

The High Court allowed the appeal against the threat to kill conviction but dismissed the appeals on other grounds. Consequently, the convictions for the sexual offences remained, but the threat to kill conviction was quashed. The sentence imposed by the trial court was upheld, with no variation ordered.

Orders