R v M, WJ

The appeal was brought by the appellant against his sentence following a conviction by a judge alone of unlawful sexual intercourse, indecent assault, and attempted sexual intercourse. The appellant was sentenced to six years imprisonment with a non-parole period of three years and six months. The appellant had commenced a relationship with the victim's mother around 1987, and the offending occurred after the family moved house in 1989. The offending ceased when the appellant became aware that the victim had awakened and objected to his conduct. In 1991, the victim complained to her mother about the abuse approximately twelve months after the offending had stopped, but her mother did not act upon the complaint. A complaint to the police was made in March 2003 when the relationship between the appellant and the victim's mother ended. The appeal sought to determine whether the sentence was manifestly excessive, whether the sentencing judge failed to take into account the relevant sentencing standards as they applied at the time of the offending, and whether the sentencing judge made errors of fact in sentencing the appellant.

The court considered the appellant's arguments that the sentence was manifestly excessive and that the sentencing judge failed to apply the sentencing standards as they existed at the time of the offending. The court also examined whether there were any errors of fact in the sentencing process. In relation to the argument that the sentencing judge should have applied the sentencing standards from the time of the offence, the court noted that the general rule is that legislation will not operate retrospectively unless the legislature clearly states that an amendment will have retrospective effect. The court held that the principle against retrospective operation applied to legislation that increased penalties, and the appellant was liable to be sentenced under the penalty provisions as they applied at the time of the offence. The court found that the two errors identified by the appellant were not significant enough to amount to appealable error or to conclude that the sentence was manifestly excessive.

The court dismissed the appeal against the sentence. The court held that the sentence was appropriate and did not consider it necessary to apply today's standards to the appellant's case. The court emphasised that offences involving unlawful sexual intercourse with children under 12 years of age, when there are multiple offences committed over a period of time, should attract a starting point of about 12 years imprisonment. This starting point would be subject to reduction based on factors such as a plea of guilty, cooperation with the police, and genuine contrition. The court did not wish to be taken as suggesting a precise figure, as the starting point might vary in appropriate cases.