R v GMT - [2006] VSCA 13

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 157 of 2005

THE QUEEN
	v.
GMT

---

JUDGES:	CHARLES and VINCENT, JJ.A. and MANDIE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2006
DATE OF JUDGMENT:	7 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 13	1^ST Revision: 16 June 2006

---

CRIMINAL LAW – Sentence – Maintaining a sexual relationship with child under 16 – Offender’s sexual abuse of daughter commencing at age of 3 in 1989 – Offence created by statute in 1991 – Whether judge took into account conduct before period alleged in presentment – Prevalence – Expert evidence – Likelihood of reoffending – Sentence of 9 years, non parole period of 6 years not manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.T. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Victoria Legal Aid

CHARLES, J.A.:

The appellant pleaded guilty in the County Court at Melbourne on 10 May of 2005 to a presentment alleging one count of maintaining a sexual relationship with a child under 16. The maximum penalty for this offence is 25 years' imprisonment. After a plea, the appellant was sentenced on 26 May to nine years' imprisonment and the judge fixed a non-parole period of six years.

On 21 October, leave to appeal under s.582 of the Crimes Act 1958 was granted by a judge of this Court. The appellant now appeals on the grounds that -

1.The judge imposed a sentence that was manifestly excessive in all the circumstances, particularly having regard to the plea of guilty, the delay, the appellant's rehabilitation in the period since he ceased offending, his remorse, his otherwise good character, the nature of the sexual interference and the, at least partial, forgiveness of the victim.
2.The judge erred in taking into account for the purposes of sentence conduct which occurred outside the period covered by the presentment.
3.The judge erred in failing to give any consideration to the views expressed by the victim as to sentence.
4.The judge erred in finding that offending such as the appellant's was prevalent.
5.The judge erred in his assessment of the likelihood of the appellant re-offending.

The circumstances giving rise to the offence alleged were as follows. The appellant formed a de facto relationship with P in 1980 and they lived together in P's house for some 17 years thereafter. He moved out of P's house in 1998, yet continued thereafter frequently to visit her house. The relationship produced two children, the first being born in November 1983 and the second, the victim in this matter, a daughter, D, born on 16 November 1986.

The appellant began a sexual relationship with D in around 1989, when she was three years old and attending an Early Learning Centre, and it lasted until she was aged ten or eleven. The sexual relationship was more frequently acted upon when D was younger and involved various sexual acts, which occurred mostly in the lounge room…

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 GMT

Details

AGLC: R v GMT [2006] VSCA 13
Case: [2006] VSCA 13
Decision Date: 7 February 2006

CaseChat Overview and Summary

In the case of R v GMT, the appellant was convicted of engaging in a sexual relationship with his daughter who was under the age of 16 at the time of the offence. The abuse began when the child was three years old, in 1989, and continued until the offence was created by statute in 1991. The High Court was tasked with reviewing the sentence imposed on the appellant, which was nine years imprisonment with a non-parole period of six years. The central issue was whether the trial judge had appropriately considered the appellant's conduct prior to the period alleged in the presentment, and if the sentence was manifestly excessive.

The court examined whether the trial judge had erred in not considering the appellant's conduct before the statutory creation of the offence in 1991. The court noted that the trial judge had considered the long duration and prevalence of the abuse, and the likelihood of reoffending, which were critical in determining the appropriate sentence. The expert evidence provided further context on the impact of such abuse and the risk of reoffending. The court concluded that the trial judge had not erred in this respect, as the focus was appropriately on the conduct during the statutory period. Additionally, the court held that the sentence, including the non-parole period, was not manifestly excessive given the severity and duration of the abuse.

The High Court found that the trial judge had appropriately balanced the relevant factors in imposing the sentence. The court emphasised the importance of considering the nature and impact of the abuse, as well as the risk of reoffending, when determining an appropriate punishment. The sentence was deemed to reflect the gravity of the offences and the need for general deterrence. The court ultimately upheld the sentence, finding it to be within the range of acceptable punishments for the crime committed.

Orders