Maurice v The Queen

[2011] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0886

STEPHEN MAURICE	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 January 2011
DATE OF JUDGMENT	30 June 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 197
JUDGMENT APPEALED FROM	R v Maurice (Unreported, County Court of Victoria, Judge Lacava, 14 October 2008)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Entering bedroom of sleeping child with intention to commit indecent assault – Victim aged 10 – Sexual penetration of child under 16 – Total effective sentence 9 years, non-parole period 7 years – Whether manifestly excessive – Whether non-parole period too great a proportion of head sentence – Whether sufficient weight given to prospects of rehabilitation – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Glynn	Andrew George Solicitors
For the Crown	Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. The appellant pleaded guilty to one count of aggravated burglary and one count of sexual penetration of a child under 16.  He was sentenced as follows:

Count	Offence	Maximum	Sentence	Cumulation	6AAA Declaration
					Individual count	Cumulation
1	Aggravated Burglary	25y	7y	Base	9y	Base
2	Sexual penetration of a child under 16 years of age	10y	5y	2y	7y	3y
Total Effective Sentence (TES):			9y		12y
Non-parole period (NPP):			7y		10y

1. By leave, he now appeals against that sentence.  For reasons which follow, I would dismiss the appeal.

The circumstances of the offending

1. The female victim (‘R’) had just turned 10.  She resided with her parents, two older brothers and an older sister.  The appellant, who was aged 31 at the time of the offending, lived only 50 metres from her house.

1. On the night in question, R was asleep in the front bedroom of the house, which she shared with her older sister.  She was asleep on the top bunk, while her sister was asleep on the bottom bunk.  At approximately 4:00 am, R awoke to find the appellant rubbing her stomach, legs and genital area.  He had gained access to the bedroom by removing a flywire screen, placing it against the side of the house in the driveway and then climbing in the bedroom window.

1. The appellant placed his hand under the doona and commenced to rub R’s legs, stomach, bottom and genital area.  She was wearing a nightie.  The appellant continually rubbed her genital area and then placed his finger inside her vagina, forcing her legs further apart.  At various points, the appellant climbed further up the bunk ladder to gain better access to R.

1. Having been awakened by the appellant’s actions, R lay in fear, pretending to be asleep.  The appellant left via the bedroom window and fled the scene.  R immediately woke her sister and asked to be taken into the parents’ room.  The older sister said that R was screaming her name and telling her that someone had touched her.  R was…