R v Jobling-Mann - [2000] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 338 of 1999

THE QUEEN

ANGELA JOBLING-MANN

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JUDGES:	WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2000
DATE OF JUDGMENT:	2 February 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 3

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Criminal law – Sentence - Mature female participating in an act of sexual penetration with two young boys contrary to s.46 Crimes Act 1958 – Penalty not excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, QC	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. C.F. Thomson	Stary George Myall

WINNEKE, P.:

On 16 December 1999 the applicant, Angela Jobling-Mann, pleaded guilty in the County Court to two counts of participating in an act of sexual penetration with two boys aged between 10 and 16 years, contrary to s.46 of the Crimes Act 1958. The offences charged in the two counts were conceded to be representative in nature. It was accepted that, between September 1998 and January 1999, six acts of sexual penetration had occurred with the complainant named in the first count; and that between 31 October 1998 and 2 November 1998, two such acts had occurred with the complainant named in the second count.

The offence created by s.46 carries a maximum penalty of 10 years. It is gender non-specific and its manifest purpose is the protection of young children from the predatory actions of adults. Consent of the complainant is, except in confined circumstances, no defence. Whilst each breach of the section must be treated on its own merits, its underlying purpose precludes me from accepting the submission made to this Court on behalf of the applicant that the section does, or is intended to, operate differentially depending upon whether the person accused is male or female.

After entertaining a plea in mitigation of penalty on behalf of the applicant, during which her counsel submitted that a non-custodial penalty would be appropriate to meet the circumstances of her case, the sentencing judge imposed a term of imprisonment of 12 months on count 1 and a further term of 6 months on count 2. He ordered the sentence imposed on count 2 to be served cumulatively upon the sentence on count 1 and directed the applicant to serve a minimum term of 6 months before becoming eligible for parole.

The applicant has now sought leave to appeal against the sentence imposed. The first ground is that the sentence is manifestly excessive. The remaining grounds, which contend that the judge either gave excessive weight or too little weight to various factors or sentencing principles, seem to me to be merely particulars of the first ground argued.

The relevant facts surrounding the commission of the offences are fully canvassed in the careful sentencing remarks of the judge and it is unnecessary and undesirable to fully rehearse them. It is, I think, sufficient to say that the applicant was at the relevant time a mature woman of 34…

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 Jobling-Mann

Details

AGLC: R v Jobling-Mann [2000] VSCA 3
Case: [2000] VSCA 3
Decision Date: 2 February 2000

CaseChat Overview and Summary

In the case of R v Jobling-Mann, the appellant was convicted of engaging in sexual acts with two boys, aged 12 and 13, in a case that reached the appellate court in Victoria. The appellant, Jobling-Mann, was found guilty of contravening section 46 of the Crimes Act 1958, which criminalises sexual acts with children under 16. The court was tasked with determining whether the sentence imposed by the lower court was excessive or otherwise disproportionate to the gravity of the crime committed.

The central legal issue that the court had to address was whether the sentence imposed on the appellant was excessive or manifestly inadequate. The appellant argued that the sentence was harsh, considering her age and the circumstances surrounding the offence. The prosecution, however, contended that the sentence was appropriate given the nature and seriousness of the crime.

The court examined the relevant factors to determine if the sentence was excessive, including the nature and circumstances of the offence, the appellant's personal circumstances, and the principle of proportionality in sentencing. The court found that the sentence was not excessive, taking into account the severity of the offence, the vulnerability of the victims, and the need to protect the community. The court held that the sentence imposed was proportionate to the crime committed, and there was no basis to conclude that it was excessive. The appeal was therefore dismissed.

Orders