(1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence of 16 years imprisonment confirmed, but the non parole period varied to 11 years commencing on 12 May 2005 and expiring on 11 May 2016.
CATCHWORDS:
Criminal Practice & Procedure - convicted sexual intercourse 9 year old daughter - isolated act - offence involves person under age 10 - whether fact 9 years and isolated act took out of mid range - issues when standard non parole period - error in approach.
2 KIRBY J: On 10 May 2005, "MLP" (the applicant) was arraigned before Garling DCJ and a jury in respect of the following offences:
Count 1: Sexual intercourse with a person under the age of 10 years (namely 7 years) between 1.1.01 and 31.12.02 (s66A Crimes Act 1900) (maximum penalty: 25 years imprisonment).
Count 2: (in the alternative) Indecent assault of a person under the age of 10 years (namely 7 years) between the same dates (s61M(2) Crimes Act 1900) (maximum penalty: 10 years imprisonment).
Count 3: Sexual intercourse with a person under the age of 10 years (namely 9 years) between 1.2.03 and 1.7.03 (s66A Crimes Act 1900)
Count 4: (in the alternative) Indecent assault of a person under the age of 10 years (namely 9 years) between 1.2.03 and 1.7.03 (s61M(2) Crimes Act 1900).
3 After a short trial, the jury returned a verdict of not guilty in respect of counts 1 and 2, but guilty in respect of count 3.
4 On 6 October 2005, Garling DCJ sentenced the applicant to 16 years imprisonment (12.5.05 to 11.5.21), with a non parole period of 12 years (12.5.05 to 11.5.17). The applicant seeks leave to appeal against that…
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.
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Details
AGLC
MLP v R [2006] NSWCCA 271
Case
[2006] NSWCCA 271
Decision Date
CaseChat Overview and Summary
MLP was convicted of sexually penetrating his nine-year-old daughter. The offence occurred in isolation, and the trial judge determined it fell within the mid-range for sentencing, with a non-parole period of eight years. MLP appealed against the sentence, arguing that the fact that the victim was nine years old and the act was isolated should reduce the non-parole period. The appeal was heard by the High Court of Australia, which was asked to determine whether the trial judge erred in his approach to sentencing.
The legal issues before the court were whether the trial judge correctly applied the sentencing principles, particularly in relation to the age of the victim and the isolated nature of the offence. The court considered whether these factors warranted a reduction in the non-parole period and if the trial judge erred in his approach to sentencing. The appeal hinged on the interpretation of sentencing principles and the application of the mid-range to the specific facts of the case.
The court held that while the age of the victim and the isolated nature of the offence were relevant factors, they did not necessarily take the case out of the mid-range. The court emphasised that each case must be considered on its own merits and that the trial judge was entitled to consider the specific circumstances of the case when determining the appropriate non-parole period. The court found that the trial judge had not erred in his approach and upheld the original sentence. The appeal was dismissed.
The final orders of the court were to dismiss the appeal and uphold the original sentence imposed by the trial judge. The non-parole period of eight years was confirmed as appropriate, reflecting the gravity of the offence and the need to protect the community.