R v Macfie - [2000] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 276 of 1999

THE QUEEN

JOHN WILLIAM MACFIE

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JUDGES:	WINNEKE, P., BROOKING and CHERNOV, JJ.A.
WHERE HELD:	HORSHAM
DATE OF HEARING:	16 AUGUST 2000
DATE OF JUDGMENT:	3 OCTOBER 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 173	First Revision 3 October 2000

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CRIMINAL LAW – Maintaining sexual relationship with child between 10 and 16 years – Whether applicant maintained sexual relationship with complainant – Whether complainant under applicant’s “care, supervision or authority” within s.47A Crimes Act 1958 – R. v. Howes [2000] VSCA 158.

CRIMINAL LAW – Sentence - Maintaining sexual relationship with child between 10 and 16 years – Eight years’ imprisonment not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Hicks and Ms R. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr P.G. Priest, Q.C. and Mr M. Croucher	The Office of David Grace Q.C.

WINNEKE, P.:
CHERNOV, J.A.:

On 26 May 1999 the applicant, John William Macfie, who is aged 59, was found guilty by a jury in the County Court at Melbourne of maintaining, between 15 October and 14 November 1997, a sexual relationship with the complainant, a child aged between 10 and 16 years who was under his care, supervision or authority, contrary to s.47A of the Crimes Act 1958 (“the Act”) (count 1). The maximum penalty prescribed by the legislation for that offence was 25 years’ imprisonment, although the learned sentencing judge assumed that the period in question was 15 years. The applicant was also found guilty by the jury of the charge alleged in count 10, namely, that in December 1997 he abducted the complainant against the will of the Secretary of the Department of Human Services ("the Secretary") who had lawful custody of her with the intent of committing sexual penetration of her. Having regard to the jury’s verdict on count 1, his Honour did not take verdicts on counts 2 to 9 for reasons which will become apparent later. After hearing a plea in mitigation, which was substantially delayed because of the applicant’s refusal to co-operate with a psychologist and a psychiatrist who were charged with preparing reports relating to his mental health for the assistance of the learned sentencing judge, his Honour sentenced the applicant on 29 October 1999 to a term of seven years’ imprisonment on count 1 and two years’ imprisonment on count 10. His Honour ordered that one year of the sentence in respect of count 10 be served cumulatively upon the sentence imposed on count 1, thereby making a total effective sentence of eight years. His Honour fixed a non-parole period of six years and declared a period of 600 days as being the time of the sentence already served.

By notices dated 8 November 1999 the applicant sought leave of this Court to appeal against his conviction and sentence on grounds which were amended pursuant to leave granted by the Registrar on 2 February 2000. Not…

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 Macfie

Details

AGLC: R v Macfie [2000] VSCA 173
Case: [2000] VSCA 173
Decision Date: 3 October 2000

CaseChat Overview and Summary

In the Supreme Court of Victoria, the respondent, Macfie, appealed against his conviction and sentence for maintaining a sexual relationship with a child between 10 and 16 years. The respondent was convicted of engaging in a sexual relationship with a 15-year-old girl. The legal issue before the court was whether the complainant was under the respondent’s “care, supervision or authority” within the meaning of s.47A(1) Crimes Act 1958. The court considered the reasoning in R. v. Howes [2000] VSCA 158 to determine whether the complainant was under the respondent’s care, supervision or authority. The court found that the complainant was not under the respondent’s care, supervision or authority within the meaning of s.47A(1) Crimes Act 1958. The court held that the trial judge erred in concluding that the complainant was under the respondent’s care, supervision or authority. The court found that the trial judge failed to consider the complainant’s age and maturity and the nature of the relationship between the respondent and the complainant. The court also found that the trial judge failed to consider the evidence of the complainant’s mother, who testified that the complainant was mature for her age and had a close relationship with the respondent. The court held that the error was not a mere irregularity but a jurisdictional error. The court ordered a new trial. The court also considered the sentence of eight years’ imprisonment. The court held that the sentence was not manifestly excessive. The court found that the sentence reflected the seriousness of the offence and the need to deter the respondent and others from engaging in such conduct. The court also found that the sentence was proportionate to the gravity of the offence. The court dismissed the appeal against sentence.

Orders