Macfarlan JA at [1] Adamson J at [2] Bellew J at [3]
Decision:
The appeal is dismissed.
Catchwords:
CRIMINAL LAW - sentence - sexual assault upon a person under the age of 10 years - appellant sentenced to a non-parole period of 11 years and an additional term of 5 years, being a total term of 16 years - sentence found to have been infected by Muldrock error - matter referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 to determine whether some other sentence was warranted
CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - victim of offending was the appellant's 9 year old daughter - offending occurred when appellant was exercising right of access - offending occurred in the immediate presence of the appellant's other two children
CRIMINAL LAW - sentence - particular offences - sexual assault upon a person under the age of 10 years - offending did not form part of a pattern of behaviour and was isolated - Necessity not to focus upon duration of offending when determining objective seriousness - Necessity to bear in mind long term psychological effects upon the victim
CRIMINAL LAW - Sentence - Use of sentencing statistics - Use of sentences imposed in other cases for comparative purposes - Necessity for care when conducting comparisons of sentences - Necessity to determine an appropriate sentence according to principle as opposed to numerical equivalence
[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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Details
AGLC
MLP v R [2014] NSWCCA 183
Case
[2014] NSWCCA 183
Decision Date
CaseChat Overview and Summary
The case of MLP v R involved the appellant who was convicted of sexually assaulting his 9-year-old daughter. The appellant was exercising his right of access at the time of the offence and his two other children were present. The appellant was sentenced to a non-parole period of 11 years and an additional term of 5 years, making a total term of 16 years. The Court of Criminal Appeal found the sentence to have been infected by the Muldrock error and referred the matter to the court to determine whether some other sentence was warranted.
The legal issues before the court were whether the sentence imposed was appropriate in light of the circumstances of the case, and whether the court had adequately considered the objective seriousness of the offence and the long-term psychological effects on the victim. The court was also required to consider whether the use of sentencing statistics for comparative purposes was appropriate in this case.
The court found that the sentence imposed was infected by the Muldrock error and was therefore inappropriate. The court noted that the offending was isolated and did not form part of a pattern of behaviour. The court emphasised the need to determine an appropriate sentence according to principle as opposed to numerical equivalence. The court also noted the necessity to bear in mind the long-term psychological effects on the victim and the importance of care when conducting comparisons of sentences.
The court ordered that the matter be remitted to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 to determine whether some other sentence was warranted. The court noted that the appellant's offending was of a serious nature and warranted a significant penalty, but the sentence imposed was inappropriate in light of the circumstances of the case.