Basten JA at [1]; R A Hulme J at [38]; Garling J at [39];
Decision:
(1) Grant leave to appeal.
(2) Set aside each of the sentences imposed by Delaney DCJ on 31 May 2012
(3) In lieu of those sentences, the applicant is to be sentenced as follows:
Count 1: A fixed term of imprisonment of 6 months, commencing on 18 January 2011 and finishing on 17 July 2011.
Count 2: A fixed term of imprisonment of 6 months, commencing on 18 January 2011 and finishing on 17 July 2011.
Count 3: A fixed term of imprisonment of 9 months, commencing on 18 April 2011 and finishing on 17 January 2012.
Count 4: A fixed term of imprisonment of 9 months, commencing on 18 April 2011 and finishing on 17 January 2012.
Count 5: A fixed term of imprisonment of 2 years, commencing on 18 October 2011 and finishing on 17 October 2013.
Count 6: A fixed term of imprisonment of 2 years and 6 months, commencing on 18 October 2011 and finishing on 17 April 2014.
Count 7: A total term of imprisonment of 6 years and 6 months, commencing on 18 October 2011 with a non-parole period of 3 years 6 months.
The first date upon which the applicant will become eligible to be released on parole is 17 April 2015.
Catchwords:
CRIMINAL LAW - leave to appeal against sentence - old child sex offences - whether sentences were manifestly excessive having regard to sentencing patterns at time of offence - sentence on standards at the time of commission of offence - whether established pattern of sentencing for child sexual assault offences in 1970's - long delay between commission of offence and conviction - whether regard was had to the spectrum of criminality encompassed by the offences in sentence - whether error in application of discount for guilty pleas - whether error in concurrent sentences to reflect the totality of criminality of offences.
[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
MPB v R [2013] NSWCCA 213
Case
[2013] NSWCCA 213
Decision Date
CaseChat Overview and Summary
In MPB v R, the appellant, MPB, sought leave to appeal against his sentence for historical child sex offences. The appeal was heard in the High Court of Australia. MPB was convicted and sentenced for multiple instances of child sexual assault that occurred in the 1970s. The central issues before the court were whether the sentences imposed were manifestly excessive, whether they were properly assessed according to the sentencing standards of the time, and if the totality principle was correctly applied in the sentencing process.
The court examined whether the sentences reflected an established pattern of sentencing for child sexual assault offences in the 1970s, considering the long delay between the commission of the offences and the conviction. It was also necessary to determine if the spectrum of criminality encompassed by the offences was appropriately considered in the sentencing. Additionally, the court assessed whether there was an error in the application of the discount for MPB’s guilty pleas and whether the concurrent sentences correctly reflected the totality of the criminality of the offences.
The High Court concluded that the sentences were not manifestly excessive when measured against the sentencing patterns of the 1970s. The court found that the trial judge had correctly applied the principles of totality and had adequately considered the spectrum of criminality. It also held that there was no error in the application of the discount for the guilty pleas and that the concurrent sentences were appropriate. Consequently, the appeal was dismissed, and the sentences were upheld.