R v M S - [2009] VSC 239

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 10500 of 2008

THE QUEEN
v
MS	Appellant

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 & 4 March 2009
DATE OF SENTENCE:	4 March 2009
CASE MAY BE CITED AS:	R v MS
MEDIUM NEUTRAL CITATION:	[2009] VSC 239

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Catchwords: Appeal against sentence from the Children's Court - child stealing - sexual penetration of a child - aggravated burglary - burglary - theft - sentencing considerations in s.362(1) of the Children Youth & Families Act 2005 - not outweighed by advances in rehabilitation while in custody - sentence of 27 months detention in a Youth Justice Centre.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Castle	Office of Public Prosecutions
For the Appellant	Mr A. Munro	Victoria Legal Aid

HER HONOUR:

MS appeals against the sentence of 27 months detention in a Youth Justice Centre imposed upon him by the President of the Children’s Court on 28 November 2008. The offences committed by MS in respect of which he was sentenced span the period January to June 2008 and were committed when he was 17 years old. He is now aged 18.

In respect of case number 200802511, on 21 May 2008 the appellant was placed on 12 months probation in respect of the following offences: theft (four charges), indecent assault, attempted robbery (two charges), possessing cannabis (two charges), trafficking in cannabis, criminal damage, unlawful assault and attempting to obtain property by deception (two charges).

These offences occurred variously in an eight week period between 9 January 2008 and 3 March 2008. While on probation, the appellant committed further offences between 1 and 14 June and on 29 June 2008, these offences being; burglary, theft, child stealing, aggravated burglary, theft, sexual penetration of a child under the age of 16 (two charges), attempted sexual penetration of a child under the age of 16 and reckless conduct endangering a person.

On 29 June 2008, the appellant was charged in respect of those offences and remanded in custody. On 10 October 2008, sentencing was deferred until 28 November to allow for the completion of a male adolescent program for positive sexuality assessment. The appellant remained on remand until the date of sentence.

I turn now to the summary of the offences. The offence of indecent assault occurred on 11 February 2008, when the appellant touched the buttocks of a female shopper in a supermarket. On the same day, he stole a bottle of alcohol from another supermarket, and two days later purchased cannabis, attempted to sell some of it and attempted to rob two girls in the street.

When he was arrested later on that night he was found to be in possession of cannabis. When interviewed by the police, he made full admissions in respect of these offences. The following day at 11 pm the appellant cycled to the local hotel to purchase beer. The bottle shop was closed. As he cycled…

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 M S

Details

AGLC: R v M S [2009] VSC 239
Case: [2009] VSC 239
Decision Date: 4 March 2009

CaseChat Overview and Summary

The matter of R v M S involved a young offender, M S, who appealed against a sentence imposed by the Children's Court of Victoria. The appellant was convicted of multiple offences, including stealing, sexual penetration of a child, aggravated burglary, and burglary. The appeal centred on the sentence of 27 months detention in a Youth Justice Centre, with the appellant contending that the sentence was too harsh and did not adequately consider recent advances in rehabilitation methods.

The legal issues before the court included whether the sentence imposed was excessive given the mitigating factors and the potential for rehabilitation, and whether the court had correctly applied the sentencing considerations outlined in section 362(1) of the Children, Youth and Families Act 2005. The appellant argued that the advances in rehabilitation since the time of the original sentencing should have been considered and potentially mitigated the sentence.

The court found that while the advances in rehabilitation were notable, they did not outweigh the severity of the crimes committed. The court held that the sentence imposed was appropriate given the nature of the offences and the need for deterrence and protection of the community. The court concluded that the sentence did not breach any legal principles and was within the permissible range for the offences committed. The appeal was dismissed, and the original sentence was upheld.

Orders