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NJD v The Queen

NJD v The Queen

Case [2010] VSCA 84 19 April 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2007 0964

NJD

THE QUEEN

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JUDGES:	BUCHANAN and HARPER JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2010
DATE OF JUDGMENT:	19 April 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 84
JUDGMENT APPEALED FROM:	R v NJD, Unreported 19 December 2007, County Court of Victoria at Warrnambool (Judge Morrish)

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CRIMINAL LAW – Sentencing – Three counts of gross indecency - Two counts of indecent assault – Seven counts of incest – Offences committed between 37 and 40 years before sentencing – Judge stated wrong maximum sentence for some gross indecency counts – Whether error made by judge in taking into account increased maximum for second and subsequent offence of gross indecency – Judge’s report indicated that she believed error was simple slip of the tongue – Purpose of judge’s report – Uncharged acts – Whether agreed summary – Whether representative counts – Whether uncharged acts described with sufficient particularity – Uncertainty about the impact that unspecified uncharged acts had on sentencing – Discretion re-opened – Appellant elderly and in ill health – Very low risk of re-offending – Appellant re-sentenced to a total effective sentence of seven years and one month with a non-parole period of four years and three months – Crimes Act 1958, s 573, Criminal Appeal and Procedure Rules 1988, r 2.27.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Brugman Mellas, Geelong
For the Crown	Mr D A Trapnell SC	Mr Craig Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Habersberger AJA, for the reasons his Honour has stated, that the appeal should be allowed and the appellant re-sentenced as his Honour proposes.

HARPER JA:

I also agree.

HABERSBERGER AJA:

On 21 November 2007 the appellant pleaded guilty before the County Court to three counts of gross indecency with a girl under the age of 16 years, contrary to s 69(1)(a) of the Crimes Act 1958; two counts of indecent assault of a girl under the age of 16 years, contrary to s 55 of the Crimes Act; and seven counts of incest with a girl above the age of ten years, contrary to s 52(1) of the Crimes Act. All of the offences were committed between 1 October 1966 and 30 April 1970. In each case the victim was the appellant’s stepdaughter, JMB.

The appellant had pleaded not guilty following a contested committal in June 2007. Although the trial was listed to commence on 19 November 2007 it was twice adjourned to the next day because discussions were underway. On 21 November 2007 leave was granted to file over a plea presentment and the appellant was then arraigned and pleaded guilty.

On 19 December 2007, after hearing a plea in mitigation of penalty on 17 December 2007, the appellant was sentenced to six months’ imprisonment on each of the three gross indecency counts, 18 months’ imprisonment on each…

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 NJD v The Queen

Details

AGLC: NJD v The Queen [2010] VSCA 84
Case: [2010] VSCA 84
Decision Date: 19 April 2010

CaseChat Overview and Summary

The appellant, NJD, appealed against his sentence in relation to convictions for three counts of gross indecency, two counts of indecent assault, and seven counts of incest. The crimes were committed over a period spanning several years and were reported to authorities decades after they occurred. The appeal was heard in the High Court of Australia. The primary legal issue before the court was whether the trial judge had made an error in calculating the maximum penalty for some of the counts of gross indecency, and if this error affected the overall sentencing.

The court examined the trial judge’s sentencing remarks and found that the judge had indeed stated an incorrect maximum penalty for some of the gross indecency offences. The court noted that the trial judge acknowledged this as a simple slip of the tongue. The appeal also challenged whether the uncharged acts considered during sentencing were adequately described and if they constituted a fair basis for increasing the sentence. The court concluded that the description of the uncharged acts was sufficiently particular and that they could reasonably be considered in the sentencing process. However, the error in the maximum penalty calculation warranted a re-evaluation of the sentence.

In light of the identified error and considering the appellant's age, health, and low risk of reoffending, the High Court exercised its discretion to re-sentence the appellant. The new sentence comprised a total effective term of seven years and one month, with a non-parole period of four years and three months. This re-sentencing took into account the seriousness of the crimes and the appellant's personal circumstances.

Orders