[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES:
MAXWELL P and CROUCHER AJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
12 May 2017
DATE OF FINAL SUBMISSIONS:
6 October 2017
DATE OF JUDGMENT:
22 November 2017
MEDIUM NEUTRAL CITATION:
[2017] VSCA 340
JUDGMENT APPEALED FROM:
DPP v [McCray] (Unreported, County Court of Victoria, Judge Wischusen, 26 September 2016)
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CRIMINAL LAW – Appeal – Sentence – Course of conduct charge – Incest – Victim was offender’s natural daughter (aged 8–10) – Sentence of five years’ imprisonment – Whether manifestly excessive – Whether findings as to number of incidents open at law and reasonably open on the evidence – Indecent assault – Sentence of two years’ imprisonment – Whether manifestly excessive – Serious assault – Victim was offender’s natural daughter (aged 4–6) – Leave to appeal refused – Criminal Procedure Act 2009 sch 1 cl 4A, Sentencing Act 1991 s 5(2F).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr L Howson
Cinque Oakley Senior
For the Respondent
Ms D Piekusis
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P CROUCHER AJA:
The applicant pleaded guilty to one charge of indecent assault and one charge of incest. He was sentenced to a total effective sentence of six years’ imprisonment, with a non-parole period of four years. He has now sought leave to appeal against sentence.
On 17 February 2017, Priest JA refused the application for leave. The applicant then elected to renew his application. As filed, the application relied on three grounds. On the hearing of the renewed application, one of the original grounds was abandoned and a new ground was added, by leave.
After the hearing of the renewed application, the parties were given leave to file further submissions in light of two recent High Court decisions, Chiro v The Queen[2] and Hamra v The Queen,[3] both handed down on 13 September 2017. In those submissions, the applicant sought to add a further ground of appeal.
For reasons which follow, we would refuse the application to add the further ground of appeal and the application for leave to appeal.
Circumstances of the offending
The victim of the offending was the applicant’s biological daughter (‘H’). She was one of four children of the marriage. The applicant and H’s mother separated in 1988. Thereafter, H and her siblings had access visits with the applicant.
During an access visit, when H was aged between four and six, she was lying in the applicant’s bed. The applicant placed his erect penis high between her legs, just near her vagina, and started to move his erect penis in and out (charge 1, indecent assault).[4]
[4]The indictment charged…
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.
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McCray (a pseudonym) v The Queen [2017] VSCA 340
Case
[2017] VSCA 340
Decision Date
CaseChat Overview and Summary
The case of McCray v The Queen involves the appellant, referred to as McCray, appealing against his conviction and sentence for multiple criminal offences. The charges included engaging in a course of conduct amounting to a sexual offence against his natural daughter, as well as indecent assault and serious assault against the same child. The Court of Appeal was tasked with determining whether the sentences imposed by the lower court were manifestly excessive and whether the findings concerning the number of incidents were legally sound and supported by the evidence. The appeal was lodged under the provisions of the Criminal Procedure Act 2009 and the Sentencing Act 1991.
The central legal issues addressed by the court revolved around the severity of the sentences given in light of the crimes committed. Specifically, the court needed to decide whether the five-year imprisonment term for the course of conduct charge and the two-year imprisonment term for the indecent assault were disproportionately harsh. Additionally, the court had to consider whether the findings regarding the number of incidents were legally tenable and whether they were reasonably supported by the evidence presented during the trial. These issues were critical in assessing the overall fairness and appropriateness of the sentences.
The Court of Appeal meticulously reviewed the sentencing decisions and the evidence supporting the convictions. In its reasoning, the court found that the sentences imposed were not manifestly excessive and were commensurate with the gravity of the crimes. The findings concerning the number of incidents were deemed to be legally sound and reasonably supported by the evidence. Consequently, the appeal was dismissed, and McCray’s convictions and sentences were upheld. The court’s decision underscored the importance of balancing the severity of the offences with the appropriate punitive measures.
In light of the findings, no further orders were made, and the appellant's appeal was denied. The court’s decision emphasised the need for careful consideration of both the legal and factual basis of the sentencing decisions.