Maine v R - [2018] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0015

ROBERT GEORGE MAINE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, TATE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2017
DATE OF JUDGMENT:	8 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 56
JUDGMENT APPEALED FROM:	[2016] VCC 1992 (Judge Wischusen)

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CRIMINAL LAW – Appeal – Sentence – Use a carriage service to access child pornography material – Knowingly possess child pornography material – Whether individual sentences and total effective sentence manifestly excessive – Prior convictions for similar offending –Offending occurred only a few months after parole period expired – No error – Appeal dismissed – Criminal Code 1995 (Cth) s 474.19(1), Crimes Act 1958 s 70, Sentencing Act 1991 s 6D.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D N Sala	Stary Norton Halphen
For the Respondent	Mr P J Doyle	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P

TATE JA

BEALE AJA:

Impugned Sentence

On 16 December 2016, following a plea of guilty, the appellant was sentenced as follows:

Charge Offence Maximum Sentence Cumulation & Commencement

1 Use carriage service to access child pornography material [Criminal Code 1995 (Cth) s 474.19(1)] 15y 3y 6m
NPP 2y Commence 18m before the expiration of sentence on charge 2.

2 Knowingly possess child pornography material [Crimes Act 1958 s 70[1]] 5y 2y 6m
NPP 18m Base

Total effective sentence (combined) 4y 6m

Non-parole period (combined) 3y

Pre-sentence detention declared 33 days

Section 6AAA statement
(charge 2 only) 3y 6m
NPP 2y
[1]Repealed and replaced by Crimes Amendment (Sexual Offences) Act 2016 ss 16, 18. See now Crimes Act 1958 s 51G.
Summary of conclusions

The Court would dismiss the appellant’s appeal against sentence, which is based on one ground (manifest excess), for the following reasons:

·first, the appellant has prior convictions for similar offending for which he received significant terms of imprisonment;
·second, within a few months of the expiration of his parole period in relation to a previous sentence for similar offending, he began accessing child pornography again and continued to access it over a period of approximately five months;
·third, he accessed the child pornography despite having completed a child sex offenders program whilst undergoing his previous sentence and despite receiving regular counselling during the offending period;
·fourth, his prospects of rehabilitation were poor and, thus, specific deterrence, as well as general deterrence, loomed large in the sentencing task confronting the primary judge;
·fifth, whilst the number of images accessed by the appellant were comparatively low, that consideration was but one of a number of considerations that had to be taken into account by the primary judge in determining an appropriate sentence;
·sixth, the maximum penalty on Charge 1 was 15 years’ imprisonment. The sentence imposed for Charge 1, which was a rolled up charge, was only 23 per cent of the maximum;
·seventh, the applicant fell to be sentenced as a serious sexual offender on Charge…

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 Maine v R

Details

AGLC: Robert George Maine v The Queen [2018] VSCA 56
Case: [2018] VSCA 56
Decision Date: 8 March 2018

CaseChat Overview and Summary

Maine was convicted in the County Court of Victoria of using a carriage service to access child pornography material, and of knowingly possessing child pornography material. Maine appealed against his sentence, arguing that the individual sentences and the total effective sentence were manifestly excessive. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal court was required to determine whether the trial judge erred in the assessment of the seriousness of the offending and in the imposition of the sentences.

The appeal court found no error in the trial judge's assessment of the seriousness of the offending, noting that the offending was of a serious nature and that the prior convictions for similar offending warranted a severe sentence. The court also found that the offending occurred only a few months after Maine's parole period expired, indicating a lack of rehabilitation and a high risk of reoffending. The appeal court held that the trial judge had properly considered the principles of sentencing and had imposed a sentence that was appropriate in the circumstances. The appeal was dismissed.

The court did not make any orders.

Orders