R v AMP

Case [2010] VSCA 48 16 March 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 767 of 2008

THE QUEEN
	v
AMP

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JUDGES	NEAVE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 November 2009
DATE OF JUDGMENT	16 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 48
JUDGMENT APPEALED FROM	R v AMP (Unreported, County Court of Victoria, Judge Wilmoth, 24 July 2008)

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CRIMINAL LAW – Sentence – Sexual offences committed against multiple victims over 50 year period – Persistent offending – Applicant 71 at time of sentence, previously diagnosed with cancer and in remission – Sentence not manifestly excessive – Reduced maximum penalty that existed between time of offence and date of sentencing not applicable – Sentencing Act 1991, s 114(2) – Charter of Human Rights and Responsibilities Act 2006, s 27(2) – Meaning of ‘current sentencing practices’ – Orders for cumulation of representative counts and non-representative counts appropriate – Principles to be applied where elderly offender in ill health – R v RLP [2009] VSCA 271 applied – No obligation to accept counsel’s submission on range – R v MacNeil-Brown [2008] VSCA 190 applied – Application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Crown	Mr C J Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Victoria Legal Aid

NEAVE JA
REDLICH JA:

The applicant pleaded guilty to 20 sexual offences against children, and to one charge of possessing child pornography. The sexual offences against children occurred over a period of about 50 years. There were 13 victims of the offences including his daughters, grandchildren, nephews and nieces, the child of family friends and Sudanese children whom he met through his involvement with the Church of Nazarene.

The nature of the offences, the maximum penalties which applied at the time when they were committed and the sentences imposed by the learned sentencing judge are set out in the table below. The sentence imposed on count 19 was the base sentence.

Count

Offence

Maximum

Term

Cumulation

1

(representative)

Indecent assault of a male under 16
(WD – 11 to 12 years old)

10 years’ imprisonment

2 years’ imprisonment

6 months

2

Indecent assault of a male
(TAD – 10 years old)

5 years’ imprisonment

2 years’ imprisonment

3 months

3

Indecent assault of a male
(TAB – 9 or 10 years old)

5 years’ imprisonment

2 years’ imprisonment

3 months

4

(representative)

Indecent assault of a girl under 16
(BML – 8 to 9 years old)

5 years’ imprisonment

2 years’ imprisonment

3 months

5

(representative)

Indecent assault of a male
(ULA – 8 years old)

5 years’ imprisonment

2 years’ imprisonment

3 months

6

(representative)

Indecent assault of a girl under 16
(BML – 10 to 11 years old)

5 years’ imprisonment

2 years’ imprisonment

3 months

7

(representative)

Indecent assault of a girl under 16
(SLK – 4 years old)

5 years’ imprisonment

3 years’ imprisonment

6 months

8

(representative)

Indecent assault of a girl under 16
(SLK –…

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 R v AMP

Details

AGLC: R v AMP [2010] VSCA 48
Case: [2010] VSCA 48
Decision Date: 16 March 2010

CaseChat Overview and Summary

The case before the court was an appeal by an individual against the severity of a sentence imposed for sexual offences committed over a 50-year period against multiple victims. The applicant, who was 71 years old at the time of sentencing and had previously been diagnosed with cancer and was in remission, challenged the sentence as manifestly excessive. The appeal was heard by the court which was required to determine the appropriate sentence for the offences committed and whether the sentence imposed was excessive or not.

The central legal issues before the court were whether the sentence was manifestly excessive and whether the reduced maximum penalty that existed between the time of the offence and the date of sentencing should be applicable. The court also needed to consider the meaning of ‘current sentencing practices’ in the context of the sentencing legislation and whether the orders for cumulation of representative counts and non-representative counts were appropriate. The principles to be applied where an elderly offender in ill health was also a matter for the court to consider. The court had to examine whether there was an obligation to accept counsel’s submission on the range and whether the application for leave to appeal should be granted.

The court found that the sentence was not manifestly excessive and that the reduced maximum penalty was not applicable. The court examined the meaning of ‘current sentencing practices’ and found that the orders for cumulation of representative counts and non-representative counts were appropriate. The court applied the principles to be considered where an elderly offender in ill health and found that the sentence was appropriate in the circumstances. The court also found that there was no obligation to accept counsel’s submission on the range and that the application for leave to appeal should be refused. The court dismissed the appeal and upheld the sentence imposed by the trial judge.

Orders