R v Magner

[2004] VSCA 202

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 317 of 2003

THE QUEEN

v.

ALLAN JOHN MAGNER

---

JUDGES:	BATT and EAMES, JJ.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 2004
DATE OF JUDGMENT:	10 November 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 202

---

Criminal Law – Sentencing – Indecent act with child under 16 – Multiple counts of incest – Wrong maximum sentence for incest – Material error – Fresh evidence concerning health of appellant – Cancer – Probability at trial now certainty of death in gaol – Gaol more onerous – Appellant re-sentenced as a serious sexual offender.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle Q.C. With Mrs. C. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. M.J.  Croucher	Victoria Legal Aid

BATT, J.A.:

1. I agree with Gillard, A.J.A.  I add only that Mr. Croucher did not ask the court in re-sentencing the appellant to impose a sentence, and in particular to fix a non-parole period, that was so short as to afford the appellant the prospect of release before his death.  In that, in view of the very serious nature of this offending, counsel was clearly correct:   R. v. Jones[1]; R. v. Barling[2]; and R. v. Williams[3].

EAMES, J.A.:

[1](1993) 70 A.Crim.R. 449.

[2](1995) 75 A.Crim.R. 131.

[3]Unreported, Court of Appeal, 18 September 1995 at p.6.

1. For the reasons given by Gillard, A.J.A., I agree that the appeal should be allowed and the appellant be re-sentenced as his Honour proposes.

GILLARD, A.J.A.:

1. On 24 October 2003, Allan John Magner (“the appellant”) was arraigned in the County Court sitting at Bendigo. 

1. The appellant was charged with one count of committing an indecent act with a child under 16, contrary to s.47(1) of the Crimes Act 1958 (“the Act”), and seven counts of incest with a female under the age of 18 contrary to s.44(2) of the said Act. He pleaded guilty to all counts.

1. On that day his Honour heard a plea which was adjourned until 27 October 2003 when the judge reserved his decision. 

1. On 31 October 2003 at Melbourne, his Honour passed sentence of imprisonment as follows:

   Count 1 – indecent act – nine months;

   Count 2 – incest – two years;

   Count 3 – incest – six years;

   Count 4 – incest – two years;

   Count 5 – incest – five years;

   Count 6 – incest – five years;

   Count 7 – incest – two years;

   Count 8 – incest – five years, one year cumulative upon Count 3.

2. This resulted in a total effective sentence of seven years’ imprisonment and his Honour fixed a non‑parole period of four years.  As the appellant had been in detention, his Honour made a declaration that 19 days’ pre‑sentence detention be taken into account. 

1. On 12 November 2003, the appellant filed an application for leave to appeal against his sentence.  He relied upon five grounds of appeal.  They were, that the sentence imposed was…