R v Marikar

The Director of Public Prosecutions applied for leave to appeal against the sentence imposed on the respondent, Mr. Marikar, who had been found guilty of three counts of aggravated indecent assault. The offences were committed against a 13-year-old victim during training sessions, with the respondent being 44 years old at the time. The sentencing judge had imposed a sentence of five years imprisonment with a non-parole period of two years, but suspended the sentence on the condition that the respondent enter into a bond. The Director argued that the sentence was manifestly inadequate and that the trial judge erred in finding good reason to suspend the sentence, contending that rare and exceptional circumstances were required for such interference. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, comprising Duggan, Gray, and Kelly JJ.

The central legal issues before the Court of Appeal were whether the sentencing judge had erred in suspending the sentence, and consequently, whether the suspended sentence was manifestly inadequate. Specifically, the court had to determine if the circumstances of the case, including the respondent's previous good character, the hardship his imprisonment would cause his family, and the impact of his offending, constituted "good reason" to suspend the sentence, and whether such a suspension was justifiable in light of the principle that Crown appeals against sentence should only succeed in rare and exceptional circumstances.

Gray and Kelly JJ, in dismissing the appeal, held that no error had been demonstrated on the part of the sentencing judge. They reasoned that the sentence imposed, including the suspension, fell within the judge's discretion and that interference with a sentence on a Crown appeal is only warranted in rare and exceptional circumstances, which they found were not present in this case. They acknowledged that the respondent had been dealt with leniently but concluded that the suspension did not shock the public conscience to the extent that it necessitated intervention. Duggan J, dissenting, would have granted leave to appeal and allowed the appeal. He agreed that the head sentence and non-parole period were not erroneous but found that the respondent's previous good character, the losses he suffered, and the impact on his family were insufficient to justify suspending the sentence. He considered the suspension to have rendered the sentence manifestly inadequate and would have set aside the order suspending the sentence.

Ultimately, the majority of the Court of Appeal, comprising Gray and Kelly JJ, granted permission to appeal but dismissed the appeal, upholding the suspended sentence. Duggan J dissented, believing the appeal should have been allowed and the suspension set aside.