CRIMINAL LAW – Appeal – Sentence – Applicant broke into victim’s home – Subjected victim to repeated acts of sexual assault and rapes – Offences took place in 1985, applicant identified as offender in 2014 – One charge of burglary and six charges of sexual offending – Representative charges of indecent assault with aggravating circumstances and rape with aggravating circumstances – Protracted offending – Applicant aware of victim’s suffering – Total effective sentence 19 years’ imprisonment, non-parole period 15 years – Whether manifestly excessive – Each charge was separate crime – Objective gravity of offending very high – Severe impact on victim – Applicant’s moral culpability extremely high – Prior criminal history – Subsequent convictions for sexual offending – Applicant sentenced as serious sexual offender – Mitigating circumstances included plea of guilty, sentence burdensome on applicant, young age at time of offending – Long delay no mitigating factor – Sentences within range – Orders for cumulation appropriate – Sentences in compliance with principle of equal justice – Parole period appropriate – Leave to appeal refused –Sentencing Act 1991 s 6E.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr R Richter QC with Mr T Schocker
Stary Norton Halphen
For the Respondent
Mr J C J McWilliams
Ms A Hogan, Acting Solicitor for Public Prosecutions
MAXWELL P
KAYE JA:
In the late evening of 22 November 1985, the applicant, who was then 23 years of age, broke into the home of FH,[1] who was then living on her own in a unit in Geelong. In the following two hours, the applicant subjected FH to an horrifying ordeal in which he repeatedly raped and indecently assaulted her, in circumstances that were degrading and utterly terrifying for the victim. The applicant was not identified as the offender until 2014, when further analysis of swabs taken from FH resulted in the identification of a DNA profile that matched that of the applicant.
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the use of initials in place of the name of the complainant.
On 8 December 2016, the applicant was arrested and charged with offences relating to those circumstances. Ultimately, in February 2018, he pleaded guilty, in the County Court, to one charge of burglary, one charge of assault causing actual bodily harm, three charges of indecent assault with aggravating circumstances (two of which were representative charges), and two charges of rape with aggravating circumstances (one of which was a representative charge). After a plea hearing, the applicant was sentenced to a total effective term of 19 years’ imprisonment, with a non-parole period of 15 years.[2] He seeks leave to appeal the…
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.
Continue reading Mush v The Queen
Sign in free to access the full text
Details
AGLC
Mush v The Queen [2019] VSCA 307
Case
[2019] VSCA 307
Decision Date
CaseChat Overview and Summary
The matter of Mush v The Queen concerned an appeal against the sentence imposed on the applicant by the Court of Appeal. The applicant was convicted of one count of burglary and six counts of sexual offending against a victim, including acts of indecent assault and rape. The offences occurred in 1985, but the applicant was identified as the offender in 2014. The applicant was sentenced to a total effective term of 19 years' imprisonment, with a non-parole period of 15 years. The applicant sought to appeal the sentence on the grounds that it was manifestly excessive.
The court was required to determine whether the sentence imposed was manifestly excessive, taking into account the gravity of the offences, the moral culpability of the applicant, and any mitigating circumstances. The court also had to consider whether the sentences imposed were in compliance with the principle of equal justice and whether the non-parole period was appropriate. The court found that the applicant's moral culpability was extremely high, given the protracted nature of the offending and the severe impact on the victim. The court also noted that the applicant had a prior criminal history and subsequent convictions for sexual offending. However, the court found that the sentences imposed were within the range of sentences typically imposed for such offences and that the orders for cumulation were appropriate. The court also found that the parole period was appropriate, given the seriousness of the offences.
The court held that the sentence imposed was not manifestly excessive and dismissed the appeal. The court found that the sentences imposed were in compliance with the principle of equal justice and that the non-parole period was appropriate. The court noted that the applicant's plea of guilty and the sentence's burden on the applicant were mitigating factors, but the long delay was not. The court found that the sentences imposed were within the range of sentences typically imposed for such offences and that the orders for cumulation were appropriate. The court also found that the parole period was appropriate, given the seriousness of the offences. The court refused leave to appeal.