CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child under 12 – Manifest excess – Standard sentences – Role of standard sentence and maximum penalty in sentencing exercise – Mitigating factor of mental ill-health – Meaning of mid-range example of offending – Sentence of nine years’ imprisonment with non-parole period of six years manifestly excessive – Resentenced to six years and six months’ imprisonment with non-parole period of four years – R v Verdins (2007) 16 VR 269 considered, Crimes Act 1958 s 49A(1) – Leave to appeal granted – Appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr P J Smallwood
Gallant Law
For the Respondent
Mr P L Bourke SC
Ms A Hogan, Solicitor for Public Prosecutions
PRIEST JA T FORREST JA:
The applicant was convicted, after trial, of one charge of sexual penetration of a child under 12. He was sentenced to nine years’ imprisonment with a minimum term of imprisonment before parole eligibility of six years.
The applicant seeks leave to appeal against sentence on a single ground, expressed as follows:
Ground 1
The sentence imposed (9 years) and the non-parole period fixed (6 years) were manifestly excessive.
Particulars:
(a) The sentences imposed were manifestly too long.
(b) Manifestly too much weight was given to the standard sentence.
(c)Manifestly too little weight was given to the applicant’s traumatic background, his impaired mental functioning, his prospects for rehabilitation, the absence of a personal history of sexual or indecent offending, the absence of certain otherwise aggravating features and the principle of parsimony.
Circumstances of offending
It is convenient to set out the judge’s concise summary of offending.
[The applicant] had known Ted Prendergast[1] for many years, and through him, came to know his wife Carol for years, and later, knew their three children from birth. Verity, their eldest child, was aged eight years when [the applicant] offended against her.
[The applicant was] at the Prendergast family home on 29 April 2018, and at one stage, [the applicant], the three children, Ted Prendergast and his father were all in Verity’s bedroom. [The three men] were playing with the children, who were getting boisterous, and it was decided that [they] would all move to the lounge room. Mr Prendergast and his father left first with the youngest child, while [the applicant] gave the middle child a piggy back to the lounge room. Verity also wanted a piggy back and got on to her bed in preparation to get on [the applicant’s] back when [he] returned. It was at this point with only [Verity and the applicant] in the room, that [he] asked her if [he] could touch her vagina.…
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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McPherson v The Queen [2021] VSCA 53
Case
[2021] VSCA 53
Decision Date
CaseChat Overview and Summary
The appellant was convicted of sexual penetration of a child under the age of 12. The Court of Appeal reviewed the sentence imposed by the trial judge, which was nine years’ imprisonment with a non-parole period of six years. The Crown accepted the appeal on the basis that the sentence was manifestly excessive. The appellant, on the other hand, did not contest the appeal but sought a lesser sentence. The primary legal issue was whether the sentence was manifestly excessive, and if so, what an appropriate sentence would be. The court also considered the relevance of the maximum penalty and standard sentences in determining the appropriate punishment, as well as the impact of the appellant's mental health on the sentencing exercise.
The Court of Appeal found that the sentence was manifestly excessive, taking into account the maximum penalty and the standard sentence for the offence. The court noted that the sentence imposed by the trial judge was significantly higher than the mid-range example of offending for this crime, and that the appellant's mental health did not warrant a substantial departure from the standard sentence. The court also considered the principles set out in R v Verdins (2007) 16 VR 269, which emphasised the importance of consistency in sentencing. Ultimately, the court determined that a sentence of six years and six months’ imprisonment with a non-parole period of four years was appropriate. The appeal was allowed, and the sentence was reduced accordingly.
In light of the above, the Court of Appeal allowed the appeal and reduced the sentence to six years and six months’ imprisonment with a non-parole period of four years. The appellant was granted leave to appeal to the High Court, which ultimately dismissed the appeal. The High Court found that the sentence imposed by the Court of Appeal was appropriate, and that there was no error in the Court of Appeal's reasoning. The final orders of the Court of Appeal therefore stood.