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MC v The Queen

MC v The Queen

Case [2011] VSCA 2 14 January 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0738

MC	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 January 2011
DATE OF JUDGMENT	14 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 2	1^st Revision: 20 January 2011
JUDGMENT APPEALED FROM	R v [MC] (Unreported, County Court of Victoria, Judge Gullaci, 8 July 2009)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to three counts of rape and one count of unlawful imprisonment – Victim appellant’s former wife in whose home appellant continued to reside – Sentenced to seven years’ imprisonment with non-parole period of four years and six months – Whether sentencing judge erred in consideration of appellant’s mental state – Whether sentence manifestly excessive – Circumstances of offending highly unusual – Appellant demonstrated immediate and significant remorse – Current sentencing practices in relation to rape – Impact of recent decision in Hasan v The Queen [2010] VSCA 352 – Appeal allowed – Appellant re-sentenced to five years and six months’ imprisonment with non-parole period of three years and six months – Appeal decision no point of general principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Victoria Legal Aid
For the Crown	Mr P Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:
KING AJA:

The appellant, MC, pleaded guilty in the County Court at Melbourne to three counts of rape and one count of unlawful imprisonment. All offences occurred on 18 and 19 October 2008. The appellant was arrested on the morning of 19 October, made full admissions to the police and was remanded in custody. A plea was offered at the earliest opportunity, and the matter proceeded by way of hand-up brief at which he entered pleas of guilty.

The appellant’s plea was heard on 29 June 2009 and adjourned to 3 July 2009 for further plea. On 8 July 2009, he was sentenced as follows:

Count 1   –   four years’ imprisonment
Count 2   –   five years’ imprisonment
Count 3   –   four years’ imprisonment; and
Count 4   –                   two years and six months’ imprisonment.

The sentencing judge cumulated nine months of the sentences on counts 1 and 3 and six months of the sentence on count 4 upon each other and upon the sentence imposed upon count 2. That made a total effective sentence of seven years’ imprisonment. His Honour directed that the appellant serve a period of four years and six months’ imprisonment before being eligible for parole.

The appellant was sentenced as a serious sex offender pursuant to Pt 2A of the Sentencing Act 1991 in respect of count 3. His Honour declared, in compliance with section 6AAA of the Sentencing Act, that, but for the plea of guilty, the appellant would have been sentenced to a term of ten years’ imprisonment with a non-parole period of seven years and six months.

The circumstances of the offending were outlined by the…

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 MC v The Queen

Details

AGLC: MC v The Queen [2011] VSCA 2
Case: [2011] VSCA 2
Decision Date: 14 January 2011

CaseChat Overview and Summary

The case of MC v The Queen involved the appellant, MC, who had pleaded guilty to three counts of rape and one count of unlawful imprisonment against his former wife, with whom he continued to reside. The appellant was sentenced to a total of seven years' imprisonment, with a non-parole period of four years and six months. The appellant sought to appeal the severity of the sentence, arguing that the sentencing judge erred in considering his mental state and that the sentence was manifestly excessive. The appeal focused on whether the sentence was disproportionate given the unusual circumstances of the offending, the appellant's immediate and significant remorse, and current sentencing practices for rape.

The court was required to examine the sentencing principles relevant to rape and the impact of recent judicial decisions, particularly the decision in Hasan v The Queen. The court had to determine if the sentence imposed was appropriate in light of the appellant's remorse, the peculiar nature of the crime, and the sentencing trends in similar cases. The appellant contended that the sentence was excessively harsh and did not adequately reflect the mitigating factors present in this case. The court needed to balance the need for deterrence and denunciation with the principles of proportionality and rehabilitation.

The Court of Appeal allowed the appeal, finding that the sentence was indeed manifestly excessive. The court acknowledged the highly unusual circumstances of the offending and the appellant's immediate and significant remorse, which were not sufficiently considered by the original sentencing judge. The court also noted the impact of recent decisions, such as Hasan v The Queen, on the principles of sentencing for rape. The appellant was re-sentenced to a total of five years and six months' imprisonment, with a non-parole period of three years and six months. The Court of Appeal clarified that its decision did not establish a point of general principle but was specific to the unique facts of this case.

Orders