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Mackie v The Queen

Mackie v The Queen

Case [2022] VSCA 28 7 March 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0184

IAN ERNEST MACKIE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2022
DATE OF JUDGMENT:	7 March 2022
MEDIUM NEUTRAL CITATION	[2022] VSCA 28
JUDGMENT APPEALED FROM:	[2021] VCC 1785 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – Indecent assault upon a male person – Sentence of one year and 11 months’ imprisonment with non-parole period of 13 months – Historical offences – Effect of delay – Delay of seven years and of three years between police interview and sentence for charges 1 and 3 respectively – Unfairness limb of effect of delay – Judge erred in dealing with delay – Applicant entitled to sentencing benefit due to uncertain suspense imposed by delay – Judge gave appropriate mitigating weight to applicant’s advanced age and frailty – Suspended sentence available – Resentenced to 18 months’ imprisonment – Sentence suspended for 12 months – R v Schwabegger [1998] 4 VR 649 applied – Crimes Act 1958 s 68(3A) (repealed), Sentencing Act 1991 s 27 (repealed) – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann QC, with Mr Lucien Richter	Dribbin & Brown Criminal Lawyers
For the Respondent	Mr C B Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA
WALKER JA:

The applicant pleaded guilty in the County Court at Melbourne on 18 October 2021 to three charges of indecent assault upon a male person. He was sentenced on

8 November 2021 as set out in the table below.

Charge on indictmentK12417405

Offence

Maximum

Sentence

Cumulation

1

Indecent assault upon a male person (contrary to s 68(3A) of the Crimes Act 1958,[1] as amended by the Crimes (Amendment) Act 1967)

5 years’ imprisonment

6 months’ imprisonment

2 months

2

Indecent assault upon a male person (contrary to s 68(3A) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967)

5 years’ imprisonment

9 months’ imprisonment

3 months

3

Indecent assault upon a male person (contrary to s 68(3A) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967)

5 years’ imprisonment

18 months’ imprisonment

Base

Total effective sentence

1 year 11 months’ imprisonment

Non-parole period

13 months’ imprisonment

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

N/A

6AAA statement

30 months’ imprisonment, with a non-parole period of 20 months

Other relevant orders

Subject to reporting obligations for life, pursuant to s 34 of the Sex Offenders Registration Act 2004

[1]Repealed by Crimes (Sexual Offences) Act 1980 s 5. Section 68(3A) of the Crimes Act 1958 remains in force with respect to offences committed prior to 1 March 1981: Crimes (Sexual Offences) Act 1980 s 2.

On this application for leave to appeal against sentence the applicant advanced three proposed grounds of appeal. They are:

GROUND 1:
The Learned…

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 Mackie v The Queen

Details

AGLC: Mackie v The Queen [2022] VSCA 28
Case: [2022] VSCA 28
Decision Date: 7 March 2022

CaseChat Overview and Summary

The case of Mackie v The Queen involved an appeal by the applicant against the severity of his sentence. Mackie was convicted of indecent assault on a male person and was sentenced to one year and 11 months' imprisonment, with a non-parole period of 13 months. The appeal focused on the impact of significant delays in the legal process and the applicant’s age and health on his sentence. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court.

The primary legal issues in this case revolved around the effect of delays in the proceedings on the sentencing process and whether the trial judge had adequately considered the applicant's age and frailty. The court needed to determine whether the delays had unfairly prejudiced the applicant and whether the sentence imposed was appropriate in light of these factors. Furthermore, the court examined whether a suspended sentence was a viable option under the applicable sentencing laws.

The High Court found that the trial judge had erred in not adequately considering the unfairness caused by the delays in the proceedings. The Court noted that the delays of seven years and three years between the police interview and the sentence for the charges had an unfair impact on the applicant. Additionally, the Court found that the judge had appropriately considered the applicant’s advanced age and frailty as mitigating factors. Considering these aspects, the Court concluded that a suspended sentence was an appropriate option and resentenced Mackie to 18 months' imprisonment, suspended for 12 months. The Court applied the principles from R v Schwabegger and the repealed sections of the Crimes Act 1958 and Sentencing Act 1991 in its reasoning.

The High Court granted leave to appeal and allowed the appeal. Mackie's sentence was altered to 18 months' imprisonment, suspended for 12 months, thereby providing the applicant with a more lenient outcome that reflected the mitigating factors and the unfairness caused by the delays.

Orders