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McPherson v The Queen

McPherson v The Queen

Case [2014] VSCA 59 8 April 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0303
JOHN STANLEY McPHERSON	Appellant
v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, NEAVE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 July 2013
DATE OF JUDGMENT	8 April 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 59
JUDGMENT APPEALED FROM	DPP v McPherson (Unreported, County Court of Victoria, Judge Pullen, 9 November 2012)

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CRIMINAL LAW – Appeal – Sentence – Persistent sexual abuse – Indecent act with child under 16 (19 charges) – Total effective sentence 11 years’ imprisonment, non-parole period 7 years 6 months’ imprisonment – Multiple child victims – Forfeiture – Appellant consented to forfeiture of $100,000 – Whether ‘two-stage’ sentencing – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

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MAXWELL P:

On 29 June 2012, the appellant (now aged 68) pleaded guilty to a large number of sexual offences. The offences were committed during 2010 and 2011, against neighbourhood children who visited the appellant’s house. He was sentenced as follows:

Charge Offence Complainant Maximum Sentence Cumulation

Name Age

1 Persistent sexual abuse of a child under the age of 16 [s 47A(1) Crimes Act 1958 (Vic)] AH 13–14 25y 5y 6m Base

2 Indecent act with or in the presence of a child under 16 [s 47 Crimes Act 1958 (Vic)] (‘Indecent act’) KC 10 10y 6m 1m

3 Indecent act KC 10 10y 8m 3m

4 Indecent act KC 10 10y 6m 2m

5 Indecent act CL 13–14 10y 6m 2m

6 Indecent act CL 13–14 10y 6m 2m

7 Indecent act DM 8 10y 10m 5m

8 Indecent act DM 8 10y 6m 2m

9 Indecent act DM 8 10y 10m 4m

10 Indecent act DM 8 10y 10m 5m

11 Indecent act DM 8 10y 6m 2m

12 Indecent act DM 8 10y 10m 4m

13 Indecent act JS 8 10y 10m 5m

14 Indecent act GY 8 10y 6m 2m

15 Indecent act GY 8 10y 10m 4m

16 Indecent act DM 8 10y 12m 6m

17 Indecent act JS 8 10y 12m 6m

18 Indecent act GY 8 10y 12m 6m

19 Indecent act CL 13–14 10y 6m 2m

20 Indecent act CL 13–14 10y 10m 5m

Total Effective Sentence:

11y, 2m

Non-Parole Period: 7y, 6m

Pre-sentence Detention: 113 days

6AAA Statement: 14y, NPP 10y

Other relevant orders:
Serious sexual offender declaration for charges 2–20.

Life reporting requirement.

Forensic sample order.

Forfeiture of $100,000 from proceeds of sale of house.

On 23 May 2013, Coghlan JA granted leave to appeal on the ground that the sentencing judge had erred

in imposing a sentence on Charge 1, order[s] for cumulation on Charges 11 to 18, and a non-parole period that were manifestly excessive, in particular having regard to the applicant’s consent to a forfeiture order, age, remorse, pleas of guilty and otherwise good character.

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 McPherson v The Queen

Details

AGLC: McPherson v The Queen [2014] VSCA 59
Case: [2014] VSCA 59
Decision Date

CaseChat Overview and Summary

John Stanley McPherson appealed against his conviction and sentence for sexual offences committed against children under the age of 16. The court was required to determine whether the sentence was manifestly excessive, having regard to the appellant's consent to a forfeiture order, age, remorse, pleas of guilty and otherwise good character. The appellant pleaded guilty to 19 charges of indecent act with a child under 16, and one charge of persistent sexual abuse of a child under 16. The trial judge accepted the Crown's submission that a sentence of between six and nine years' imprisonment was appropriate on the charge of persistent sexual abuse. The judge imposed a sentence of five years and six months on that charge. The appellant submitted that the judge had applied the entire 18 month discount for the appellant's consent to the forfeiture order to the sentence on Charge 1, and that this was manifestly excessive. The Court of Appeal rejected the appeal against sentence. The Court held that the ground of manifest excess was difficult to establish, as it involved persuading the appellate court that the sentence arrived at was so plainly outside the range of sentences available to the judge in the circumstances of the case that appellate intervention was warranted. The Court held that the total effective sentence and the non-parole period were stern, but they were within the available range. The Court of Appeal dismissed the appeal.

Orders