Murray v The Queen

[2011] VSCA 232

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0275

JAMES STEWART MURRAY
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 August 2011
DATE OF JUDGMENT:	4 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 232
JUDGMENT APPEALED FROM:	DPP v Murray (Unreported, County Court of Victoria, Judge Rizkalla, 2 August 2010)

---

CRIMINAL LAW - Sentence - Multiple counts of indecently assaulting a male person under 16 and gross indecency -  Offences committed over a single weekend in 1972 to 1973 - Plea of guilty - Sentence of 36 months’ imprisonment and non-parole period of 22 months - Whether sentencing judge had proper regard to sentencing range current at the time offences committed - Delay - Whether sentence manifestly excessive - Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S R Johns	Rankin Lawyers Pty Ltd
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

1. Sometimes the past does return to haunt offender and victim alike.  Over the weekend of 31 December 1972 to 1 January 1973, the appellant, then aged 29, had, as guests in his home, three young members of the football team of which he was then the coach.  Two of those young boys, both under the age of 12, became the innocent victims of the appellant's sexual advances.  In 2008, 35 years later, they notified the authorities.  On 22 April 2009, the appellant was interviewed by the police but declined to answer their questions.  At a committal mention on 19 March 2010, however, and again on arraignment the following month, he pleaded guilty. 

1. Seven charges were involved.  Five of the charges were that the appellant indecently assaulted a male person under 16.  The remaining two charges were that the appellant engaged in an act of gross indecency with a male person.  The offending behaviour consisted of the appellant fondling genitals of the victims (the indecent assaults), and having them fondle his (the charges of gross indecency).  The maximum penalty for indecent assault of a male was, in 1972, five years’’ imprisonment.  That for gross indecency with a male was three years’ imprisonment.

1. The appellant's plea was heard on 8 July 2010 and sentence was pronounced on 2 August.  He received 12 months’ imprisonment on each charge of indecent assault, and nine months' imprisonment on each charge of gross indecency.  On the head sentence of 12 months’ imprisonment imposed on Count 1 (for indecent assault) the judge cumulated three months of two further counts (those of gross indecency), four months of each of another three counts (each of indecent assault) and six months of the last of the seven counts (again a count of indecent assault).  The total effective sentence was therefore 36 months’ imprisonment.  Her Honour directed that the appellant serve 22 months before becoming eligible for parole.

1. There are three grounds of appeal:

(a) the sentencing judge erred in failing to have regard to current sentencing practices;

(b) the sentencing judge erred in her approach to delay;  and

(c) the individual sentences imposed, total effective sentence and the non‑parole period were manifestly excessive.

Ground 1 - Current sentencing practices

1. In my opinion, the first ground is not made out.  Her Honour did correctly refer to the relevant maxima.  All judges know that a further necessary sentencing consideration is current sentencing practices.  What that expression means, in circumstances in which the maxima have increased since the date of offending, was discussed in R v AMP.[1]  The Court in that case held that regard must be had to the range applicable at the time.  Given that her Honour was aware of the relevant maxima, it must also be taken, it seems to me, that she was conscious of the need to sentence within that range so far as it can now be ascertained.

   [1][2010] VSCA 48, [32].

1. The heart of the difficulty with this ground, however, is that the range cannot now be ascertained.  The requirement to have regard to current sentencing practices was not then prescribed by statute, and judges would doubtless, through their own experience and after seeking advice of relevantly knowledgeable colleagues, have identified the upper and lower limits of any sentencing option.  Recourse to information of that kind, as current in 1972, is no longer possible.

Ground 2 - Delay 

1. Her Honour took into account, when considering the effect of delay, the fact that it gave the appellant the 38 years between 1972 and 2010 before being punished for the offending in question.  During that time he was able to pursue a career and generally to live with the legacy of no more than troublesome memories.  It is true, as her Honour recognised, that he is now to be punished as an elderly man with health problems.  He has Type 2 diabetes and requires medication; and his wife is being treated for breast cancer.

1. The appellant submits that he has, since 1991, when an episode of further like offending occurred, demonstrated his complete rehabilitation.  That is true in that he has not only committed no further offences but has put in place measures to remove himself from further temptation.  That must inure to his credit.  As against that, her Honour was, in my opinion, entitled to give some weight to the fact that the delay has had the consequence that the appellant has lived his working life without the shadow of a conviction for the offences in question.  In the meantime his victims and the community have suffered from the impacts to which this offending almost inevitably gives rise - impacts about which Vincent JA spoke in DPP v Toomey.[2]  The social rehabilitation about which his Honour also spoke in that judgment -  rehabilitation which ought, if possible, to constitute for the victims both a practical and ritual completion of a protracted and painful period - must too be given weight.  The result is a tempering of the leniency which might otherwise be indicated.

   [2][2006] VSCA 90, [20]-[24].

Ground 3 - Manifest excess

1. The final ground of appeal is manifest excess.  The appellant submits that the head sentence and non‑parole period are clearly excessive when proper weight is attributed to the principle of totality, the appellant's previous good character, his remorse, his ill health, the fact that this is his first experience of prison (which he is serving away from his home state of Queensland) and her Honour's finding that his risk of re‑offending is, ‘relatively low’.  The appellant also relies on the circumstances, previously discussed, of both delay and the sentencing practices current at the time. 

1. Her Honour took all these matters into account.  The only issue is whether she gave them appropriate weight.  But the only means of making an assessment of that issue is by an examination of the individual sentences, the degree of cumulation and the total effective sentence.  Such an examination does not, in my opinion, result in the conclusion that her Honour's discretion was not exercised according to law.  The victims were very young.  The appellant was more than twice their age.  He was in a

position of trust.  He took advantage of them on multiple occasions, albeit over only one weekend.  Yet the effect on their lives was, almost certainly, profoundly adverse.  Any attempt to reduce the individual sentences, or the degree of cumulation, while remaining above the very bottom of the range which, in my opinion, is appropriate, would, I think, amount to mere tinkering - and expose the sentences under appeal in their true light; that is, as not being manifestly excessive.

1. For these reasons, none of the three grounds can, in my opinion, be made out.  The appeal should be dismissed.

HANSEN JA:

1. I agree.

HARPER JA:

1. The order of the Court will be that the appeal be dismissed.

‑ ‑ ‑