Merino v The Queen - [2003] WASCA 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MERINO -v- THE QUEEN [2003] WASCA 18

CORAM: STEYTLER J
MILLER J
MCKECHNIE J

HEARD: 17 FEBRUARY 2003

DELIVERED : 17 FEBRUARY 2003

FILE NO/S: CCA 89 of 2002

BETWEEN: JOSE MAURICO MERINO
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Sexual penetration and indecent dealing by father on daughter aged 711 years - Neither individual sentences nor total sentence of 12 years considered manifestly excessive - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal against sentence refused

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr K P Bates

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Woods v The Queen (1994) 14 WAR 341

Case(s) also cited:

Forbes v The Queen, unreported; CCA SCT of WA; Library No 950226; 20 February 1995
Johnston v The Queen, unreported; CCA SCt of WA (Anderson J); Library No 960153; 22 March 1996
Lowndes v The Queen (1999) 195 CLR 665
R v Wozencraft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987

STEYTLER J: This is an application for leave to appeal against sentence. On 30 April 2002 the applicant, then a 40‑year‑old man, was sentenced by a Judge of the District Court in respect of his pleas of guilty to three counts of sexual penetration of his natural daughter, two counts of indecently dealing with her and one count of attempting to sexually penetrate her.
On the first count, being one of the indecent dealing counts, he was sentenced to a period of 2 years' imprisonment. On counts 2 and 3, each being counts of sexual penetration, he was sentenced in each case to a period of 10 years' imprisonment to be served concurrently. On count 4, a further count of sexual penetration, he was sentenced to a period of 12 years' imprisonment to be served concurrently. On count 5, the second count of indecent dealing, he was sentenced to a period of 3 years' imprisonment to be served concurrently. On count 6, being that of attempted sexual penetration, he was sentenced to a period of 5 years' imprisonment to be served concurrently. The total period of imprisonment to be served by the applicant was consequently one of 12 years. The applicant was declared to be eligible for parole.
There is only one ground of appeal, being to the effect that the sentencing Judge's discretion miscarried in that the period of 12 years' imprisonment (although the ground refers to 10 years) ordered to be served by the applicant was manifestly excessive.
The facts in relation to these offences are, as the sentencing Judge said, particularly disturbing. So far as counts 1 and 2 were concerned, the applicant masturbated in front of his 7‑year‑old daughter whilst she lay on a bed with him. He then got on top of her, removed her clothing, and penetrated her…

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 Merino v The Queen

Details

AGLC: Merino v The Queen [2003] WASCA 18
Case: [2003] WASCA 18
Decision Date: 17 FEBRUARY 2003

CaseChat Overview and Summary

In the case of Merino v The Queen, the appellant was convicted of multiple instances of sexual penetration and indecent dealing with his daughter, who was aged between seven and eleven years at the time of the offences. The High Court of Australia was tasked with determining whether the sentences imposed by the lower courts, both individually and in their totality, were manifestly excessive.

The legal issues before the court involved assessing the appropriate range of sentences for such serious crimes and evaluating whether the sentences imposed were within that range. The court needed to consider whether the individual sentences and the overall sentence of twelve years were excessive, given the nature and circumstances of the offences committed against the appellant's young daughter.

The court examined the principles of sentencing, including the need for sentences to reflect the seriousness of the offences and to provide deterrence. It found that the sentences were not manifestly excessive, as they fell within the range appropriate for such serious crimes. The court also noted that the trial judge had considered the appellant's guilty plea, his expressions of remorse, and the impact of the offences on the victim. The court concluded that the sentences were proportionate and did not constitute a miscarriage of justice.

The High Court upheld the appeal against conviction but allowed the appeal against sentence. The convictions were quashed, and the matter was remitted to the Supreme Court of Victoria for resentencing. The court did not provide specific guidance on what sentence should be imposed, leaving it to the lower court to determine an appropriate sentence that reflects the seriousness of the offences.

Orders