R v HJM

Case [2009] VSCA 267 25 November 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 782 of 2008

THE QUEEN
	v
HJM

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JUDGES	NEAVE and REDLICH JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 November 2009
DATE OF JUDGMENT	25 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 267
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge White, 26 June 2007)

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CRIMINAL LAW – Sentence – Incest – Sexual penetration of a child under 16 – Indecent act with child under 16 – Applicant sentenced to 11 years and 3 months’ imprisonment with non-parole period of 7 years and 9 months – Crown conceded sentencing error – Lack of parity between sentences imposed on applicant and co-offenders – Application granted and appeal allowed – Applicant re-sentenced – New evidence contained in subsequent medical reports admitted – Mitigating factors of intellectual disability, guilty plea and remorse.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Ms H Spowart	Victoria Legal Aid

NEAVE JA
REDLICH JA
HOLLINGWORTH AJA:

The applicant pleaded guilty in the County Court to eight counts of sexual penetration of a child under 16, one count of wilfully committing an indecent act with a child under 16 and five counts of incest. After hearing a plea in mitigation of sentence, the learned judge sentenced the applicant as follows:

Count(s)

Offence

Maximum

Term

Cumulation

1, 2, 6, 7, 9, 10, 11 and 12

Sexual penetration of a child under 16

10 years’ imprisonment[1]

3 years’ imprisonment on each count

6 months of each sentence

3

Committing an indecent act with a child under 16

10 years’ imprisonment

18 months’ imprisonment

3 months

4, 5, 8 and 14

Incest (aiding and abetting child’s mother or father)

25 years’ imprisonment

4 years’ imprisonment on each count

9 months of each sentence

13

Incest (aiding and abetting child’s father)

25 years’ imprisonment

4 years’ imprisonment

Base sentence

[1]Where the victim is under the care, supervision or authority of the offender, the maximum penalty is 15 years’ imprisonment: see s 45 of the Crimes Act 1958.

Count(s)	Offence	Maximum	Term	Cumulation
1, 2, 6, 7, 9, 10, 11 and 12	Sexual penetration of a child under 16	10 years’ imprisonment[1]	3 years’ imprisonment on each count	6 months of each sentence
3	Committing an indecent act with a child under 16	10 years’ imprisonment	18 months’ imprisonment	3 months
4, 5, 8 and 14	Incest (aiding and abetting child’s mother or father)	25 years’ imprisonment	4 years’ imprisonment on each count	9 months of each sentence
13	Incest (aiding and abetting child’s father)	25 years’ imprisonment	4 years’ imprisonment	Base sentence

This amounted to a total effective sentence of 11 years and 3 months’ imprisonment. His Honour ordered that the applicant serve a non-parole period of 7 years and 9 months’ imprisonment. The applicant was sentenced as a serious sexual offender on counts 3 to 14 inclusive, under Part 2A of the Sentencing Act 1991.

The applicant now seeks leave to appeal against the individual sentences, the total effective sentence and the non-parole period.

Background to the offending

The applicant is now 44 years old. He was aged between 39 and 40 years at the time of the offences and 41 years at the time of sentence.

All the offences were committed between 1 January 2005 and 12 February 2006 in Swan Hill, against the same victim, XY, who was between 10 and 11 years old. The applicant was the nephew of XY’s father (‘father’),[2] who…

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 HJM

Details

AGLC: R v HJM [2009] VSCA 267
Case: [2009] VSCA 267
Decision Date: 25 November 2009

CaseChat Overview and Summary

In this case, the applicant, identified as HJM, was convicted of multiple offences including incest, sexual penetration of a child under 16, and indecent acts with a child under 16. The Crown conceded that a sentencing error occurred, and HJM appealed the original sentence of 11 years and 3 months’ imprisonment, with a non-parole period of 7 years and 9 months. The court was tasked with re-sentencing HJM, taking into account the error and the lack of parity between the sentences imposed on HJM and his co-offenders.

The legal issues before the court involved the appropriate sentence for HJM, considering the nature and circumstances of the offences, and the need for parity with the sentences of co-offenders. The court also had to consider new evidence contained in subsequent medical reports, which indicated HJM’s intellectual disability, as well as mitigating factors such as his guilty plea and remorse. The Crown conceded that the original sentence did not adequately reflect these factors.

The court granted the application and allowed the appeal. It re-sentenced HJM to a total of 7 years and 9 months’ imprisonment, with a non-parole period of 5 years and 3 months. The court found that the original sentence was manifestly inadequate due to the lack of parity and the mitigating factors. It emphasised the importance of ensuring that sentences reflect the unique circumstances of each offender and that there is consistency in sentencing for co-offenders. The court also considered the mitigating factors of HJM’s intellectual disability, guilty plea, and remorse, which contributed to the reduction in the sentence.

The final orders of the court included the re-sentencing of HJM to a total of 7 years and 9 months’ imprisonment, with a non-parole period of 5 years and 3 months. The court's decision highlighted the importance of proportionality and consistency in sentencing, as well as the need to consider all relevant mitigating factors in determining an appropriate sentence.

Orders