SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0233
| JOHN WILLIAM MACFIE | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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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)) | |
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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.
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| 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)
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- AGLC
- Macfie v The Queen [2012] VSCA 314
- Case
- [2012] VSCA 314
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Ratio Decidendi
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