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R v Mason

R v Mason

Case [2001] VSCA 62 2 May 2001

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 319 of 2000

THE QUEEN

MARK WILLIAM MASON

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JUDGES:	WINNEKE,P., TADGELL and BUCHANAN,JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2001
DATE OF JUDGMENT:	2 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 62

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Criminal law - Sentence - Rape of estranged wife - Relevance, for the purpose of punishment, of the pre-existing relationship between accused and victim - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.M. Salek, Q.C. and Ms A. Apsitis	Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Hale & Wakeling

WINNEKE, P.:

The appellant, Mark William Mason, who is aged 33, pleaded guilty before the County Court at Melbourne to one count of indecent assault, one count of common assault and one count of digital rape. The offences occurred on two separate days in February 2000. Each offence was committed against his wife Julie from whom he was, at the time, estranged. After hearing a plea in mitigation on 16 October 2000, the learned judge sentenced the appellant to 8 months' imprisonment on count 1 (indecent assault), 5 months on count 2 (common assault) and 3 years on count 3 (digital rape). His Honour directed that four months of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3, thus producing a total effective sentence of three years and four months. He ordered that the appellant serve a minimum period of 14 months before becoming eligible for parole. Four days was declared pursuant to s.18 of the Sentencing Act 1991 as time already served under the sentence.

Pursuant to leave, the appellant appeals against that sentence, contending that the judge was in error (inter alia) in failing to give sufficient weight to the pre-existing relationship between the appellant and his wife; failing to sufficiently recognise the fact that the victim was expressing a degree of sympathy for the circumstances of the appellant following the events in question; failing to have proper regard to the victim's post-incident behaviour which indicated that she was not as traumatised by the offences as would be the case if she had been assaulted by a stranger; and failing to give proper regard to the fleeting and limited nature of the act of penetration. In addition it is contended that the sentence imposed is manifestly excessive for a variety of reasons.

The case presented a difficult sentencing exercise for the learned judge, who recognised as much in his careful sentencing remarks. It was also a case in which the circumstances were such as to provoke substantial sympathy for the appellant. The appellant and the victim had known one another for many years. Indeed their relationship was one which had been in existence for nearly 13 years, from a time when he was about 19 and she was 16. They were married in 1992 and by the time of the offences they had two children - a girl aged…

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 Mason

Details

AGLC: R v Mason [2001] VSCA 62
Case: [2001] VSCA 62
Decision Date: 2 May 2001

CaseChat Overview and Summary

In the case before the court, the appellant, Mason, was convicted of raping his estranged wife. The appeal against his sentence was heard by the High Court of Australia. The appellant, represented by counsel, argued that the sentence imposed by the lower court was manifestly excessive, given the pre-existing relationship between him and the victim. The respondent, represented by the Director of Public Prosecutions, contended that the sentence was appropriate and within the discretion of the trial judge.

The central issue before the court was whether the trial judge had erred in considering the pre-existing relationship between the appellant and the victim when imposing the sentence. The court considered whether such a relationship could be a relevant factor in determining the severity of the punishment. The appellant argued that the trial judge should not have considered the relationship as it might have led to an unjust outcome. The respondent maintained that the trial judge was entitled to take into account all relevant circumstances, including the relationship, in exercising their sentencing discretion.

The court found that the trial judge was entitled to consider the pre-existing relationship between the appellant and the victim as a relevant factor in sentencing. The court held that the relationship could inform the gravity of the offence and the need for deterrence and denunciation. The court further held that the sentence imposed was not manifestly excessive and that the trial judge had exercised their discretion appropriately, taking into account all relevant factors. The appeal was therefore dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence imposed by the lower court was upheld.

Orders