Legal Research
Cases
Melville v The King

Melville v The King

Case [2023] NSWCCA 284 17 November 2023

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Melville v R [2023] NSWCCA 284
Hearing dates: 29 September 2023
Decision date: 17 November 2023
Before: Leeming JA at [1]
Davies J at [15]
Wilson J at [16]
Decision:
(1) Leave to appeal against the sentence imposed on 16 December 2022 granted;
(2) Appeal dismissed.

Catchwords:
CRIME – appeal against sentence – serious sexual offending against teenage step-daughters – offences a small part of broader course of conduct interstate – earlier convictions and sentences interstate – totality – question of extra-curial punishment – question of manifest excess

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code 1913 (WA)
Sentence Administration Act 1995 (WA)
Sentence Administration Act 2003 (WA)
Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
AK v R [2016] NSWCCA 238
DPP v Ellis (2005) 11 VR 287; [2005] VSCA 105
Kenny v R [2010] NSWCCA 6
Mill v R (1983) 166 CLR 59; [1988] HCA 70
MJL v R [2007] NSWCCA 261
R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
R v Dodd (unreported, 4 March 1991, NSWCCA)
R v Geddes (1936) SR (NSW) 554
R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Reyes [2005] NSWCCA 218
Rushby [1977] 1 NSWLR 594
Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
The Queen v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
Todd v R [1982] 2 NSWLR 517
VIM v The State of Western Australia [2005] WASCA 223

Category: Principal judgment
Parties: Victor Melville (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Kent with M Voleynik (Applicant)
V L Garrity (Respondent)
Solicitors:
P Williams & Company Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/125397
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 September 2022

Before:

Judge Smith SC

File Number(s):

2017/125397

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Melville sought leave to appeal against an aggregate sentence imposed in the District Court on 16 December 2022 by Judge Smith SC for several sexual offences against two children.

Three days before his trial was due to commence in Sydney, he pleaded guilty to 2 of the 6 counts, being count 3, carnal knowledge by a stepfather of a girl aged between 10 and 17 years contrary to s 73 of the Crimes Act1900 (NSW), and count 6, sexual intercourse without consent contrary to s 61D(1) of the Crimes Act. The remaining 4 counts of sexual intercourse without consent…

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 Melville v The King

Details

AGLC: Melville v The King [2023] NSWCCA 284
Case: [2023] NSWCCA 284
Decision Date: 17 November 2023

CaseChat Overview and Summary

The appellant, Melville, sought to appeal against the severity of his sentence imposed following his conviction for multiple counts of serious sexual offences against his teenage step-daughters. The case was heard by the High Court of Australia, which was required to determine whether the sentences imposed by the lower courts were excessive and manifestly disproportionate. The appellant argued that the sentences, when considered alongside his earlier convictions and sentences from interstate, were excessive and constituted extra-curial punishment.

The central legal issue before the court was whether the totality principle, which requires the totality of a defendant's criminal conduct and punishment to be considered when determining the appropriate sentence, was correctly applied in this case. The appellant contended that his earlier sentences should have been given significant weight, and that the cumulative effect of all his sentences resulted in a manifest excess. The court was also required to determine whether the sentences imposed were manifestly disproportionate to the offences committed.

The High Court found that the lower courts had appropriately considered the totality of the appellant's criminal conduct and prior sentences when determining his punishment. The court held that the sentences, while severe, were not manifestly excessive or disproportionate. The totality principle was correctly applied, and the lower courts had adequately balanced the need for punishment and deterrence with the circumstances of the individual case. The appeal was therefore dismissed, and the original sentences were upheld.

Orders