R v MA - [2001] NSWCCA 30

CITATION: R v MA [2001] NSWCCA 30

FILE NUMBER(S): CCA 60346/00; 60352/00

HEARING DATE(S): 21 February 2001

JUDGMENT DATE:
21 February 2001

PARTIES :

Regina
MA

JUDGMENT OF: Grove J at 28; Hulme J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0376

LOWER COURT JUDICIAL
OFFICER : McGuire DCJ

COUNSEL : Crown: PG Berman SC
Appellant: A Webb

SOLICITORS: Crown: SE O'Connor
Appellant: DJ Humphreys

DECISION: Appeal dismissed

- 8 -

No: 60346/00
No: 60352/00

GROVE J

HULME J

REGINA -v- M A

JUDGMENT

HULME J

1. On or about 24 June 1988 having sexual intercourse with his stepdaughter, then aged between ten and sixteen and under his authority. The intercourse was fellatio.

2. In August 1988 committing an indecent assault upon his stepdaughter, then under sixteen and under his authority. The assault included cunnilingus but, given the charge, not involving penetration.

3. In 1989 indecently assaulting his stepdaughter, then under sixteen and under his authority. The conduct was penile contact with her vagina.

4 & 5 In June 1988 and in 1989, indecently assaulting his stepdaughter while under his authority by touching her vagina.

6. In December 1994 indecently assaulting his stepdaughter again by touching her vagina, but there is no element of the victim being under his authority in this charge.

7. In December 1997 indecently assaulting his daughter, then under the age of ten, by touching her on the vagina.

8 & 9 In June or July and in December 1997 indecently assaulting his daughter, then under ten, by touching her on the vagina.

2 The offences I have numbered 1 and 7 to 9 each carry maximum penalties of ten years' imprisonment. Offences 2 to 5 carry maximum penalties of six years' imprisonment and offence 6 carries a maximum penalty of five years' imprisonment.

3 In respect of the first of these offences, and taking into account matters 4 to 6, the applicant was sentenced to imprisonment for a fixed term of three years commencing on 6 June 2000. In respect of each of the offences 4 and 5 he was sentenced to a fixed term of twelve months' imprisonment, such sentences being concurrent with one another and with the offence numbered 1.

4 In respect of the offence I have numbered 7, the applicant was sentenced to imprisonment for a term of two years commencing on 6 June 2003, and including a non-parole period of six months. In totality the applicant was sentenced to imprisonment for five years, including non-parole periods totalling three and one-half years.

5 Judge McGuire indicated that he took into account the fact that the applicant had also been in custody "for approximately six months" prior to sentence in connection with the offences.

6 It is unnecessary for me to identify at any greater length the applicant's conduct in and…

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 MA

Details

AGLC: R v MA [2001] NSWCCA 30
Case: [2001] NSWCCA 30
Decision Date: 21 February 2001

CaseChat Overview and Summary

In the Court of Criminal Appeal of New South Wales, the case of Regina v MA was heard and decided on 21 February 2001. The applicant, MA, was sentenced by Judge McGuire in the District Court for a series of serious sexual offences committed against his stepdaughter and daughter over several years. The offences included sexual intercourse, fellatio, cunnilingus, and various forms of indecent assault. The maximum penalties for these offences ranged from five to ten years' imprisonment. The District Court imposed a total sentence of five years' imprisonment, including non-parole periods totalling three and a half years. The applicant sought leave to appeal against his sentence, arguing that it was manifestly excessive and that certain factors, such as the length of pre-sentence custody and the impact of a victim impact statement, were improperly considered by the sentencing judge.

The Court of Criminal Appeal was required to determine whether the appeal should be dismissed or if the sentence should be varied. The key issues were whether the sentence imposed was excessive, whether the length of pre-sentence custody was correctly described, and whether the victim impact statement should have been considered by the sentencing judge. The Court also had to assess whether the sentencing judge had appropriately considered the applicant's plea of guilty and whether there were any special circumstances that warranted a lesser sentence.

The Court of Criminal Appeal held that the sentence imposed was not manifestly excessive. The judges noted that the applicant had a lengthy criminal history and had committed multiple serious offences over several years against two victims. The sentences, when considered cumulatively, were within the range of the maximum penalties prescribed for the offences. The Court found that the sentencing judge had appropriately considered the applicant's plea of guilty and had imposed a non-parole period that allowed for alcohol rehabilitation. While the Court acknowledged that the terms of the victim impact statement went beyond the direct consequences of the charged offences, it concluded that the overall sentence was appropriate given the seriousness of the crimes.

The Court dismissed the appeal and upheld the sentence imposed by the District Court. Grove J and Hulme J agreed that the sentence was justified and that no lesser penalty was warranted given the applicant's criminal history and the nature of the offences committed.

Orders