McPherson v The Queen

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.