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

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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)

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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.

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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…