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McIntosh (a pseudonym) v The Queen

McIntosh (a pseudonym) v The Queen

Case [2018] VSCA 321 4 December 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0136

HUGH WILLIAM MCINTOSH (a Pseudonym)[1]	Appellant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 December 2018
DATE OF JUDGMENT:	4 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 321
JUDGMENT APPEALED FROM:	DPP v McIntosh (a pseudonym) [2018] VCC 940 (Judge Wilmoth)

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CRIMINAL LAW — Sentence — Appeal — Incest and associated offences — Victim the appellant’s daughter — Offending of similar nature committed concurrently in different States — Total effective sentence of 6 years and 6 months’ imprisonment, with non-parole period of 4 years — Whether manifestly excessive — Totality principle — Appeal allowed — Total effective sentence of 4 years and 6 months’ imprisonment, with non-parole period of 2 years substituted — Mill v The Queen (1988) 166 CLR 59.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Phillips	Victoria Legal Aid
For the Respondent	Ms S Flynn QC	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

Pursuant to leave granted ‘on the papers’ by a judge of this Court, the appellant challenges a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years, imposed upon him for incest and related charges. The grounds of appeal contend, first, that the sentence is manifestly excessive; and, secondly, that the sentence imposed ‘failed to adequately reflect the totality principle’.
On 16 May 2018, the appellant pleaded guilty before a judge in the County Court to one representative charge of incest,[2] charge 2, and two charges of intentionally causing injury,[3] charges 1 and 3. Each charge arose in the context of a sexual relationship that the appellant maintained with his daughter between November 2003 and July 2007, both in Victoria and Queensland. As will be seen, the major difficulty in this case results from the appellant having been sentenced in Queensland in August 2010 for offences committed against his daughter and a niece in that State during the period of the sexual relationship.
[2]Crimes Act 1958, s 44(1). The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
Following a plea, on 21 June 2018 the judge sentenced the appellant to six years’ imprisonment on charge 2,[4] incest, and to 18 months’ and nine months’ imprisonment respectively on charges 1 and 3, intentionally causing injury. Four months of the sentence on charge 1, and two months of the sentence on charge 3, were ordered to be served cumulatively with the sentence in charge 2, producing the total effective sentence of six years and six months’ imprisonment, upon which the judge fixed a non-parole period of four years.[5] Pursuant to s…

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 McIntosh (a pseudonym) v The Queen

Details

AGLC: McIntosh (a pseudonym) v The Queen [2018] VSCA 321
Case: [2018] VSCA 321
Decision Date: 4 December 2018

CaseChat Overview and Summary

The appellant, McIntosh, sought to appeal against his sentence for incest and associated offences committed against his daughter. The case was heard in the High Court of Australia. McIntosh had been sentenced to a total effective term of imprisonment of 6 years and 6 months, with a non-parole period of 4 years. McIntosh argued that the sentence was manifestly excessive and did not adequately reflect the totality principle.

The central legal issue before the court was whether the total effective sentence, and in particular the non-parole period, was manifestly excessive in the circumstances of the case. McIntosh's counsel submitted that the original sentence did not comply with the totality principle, which requires that the totality of the sentence be proportionate to the gravity of the offending. The Crown, on the other hand, argued that the sentence was appropriate and reflected the seriousness of McIntosh's crimes.

The court held that the original sentence was manifestly excessive and did not comply with the totality principle. The court found that the non-parole period was too long, given the totality of McIntosh's offending and the need to ensure that the sentence was proportionate to the gravity of the crimes. The court substituted a new sentence of 4 years and 6 months' imprisonment, with a non-parole period of 2 years. The appeal was therefore allowed, and the original sentence was set aside.

The final orders of the court were that McIntosh's total effective sentence of imprisonment be reduced to 4 years and 6 months, with a non-parole period of 2 years. The original sentence was set aside, and the new sentence was substituted in its place. The court's decision in this case reinforces the importance of the totality principle in sentencing, and the need to ensure that sentences are proportionate to the gravity of the offending.

Orders