R v MCM - [2017] QCA 187

[2017] QCA 187

COURT OF APPEAL

SOFRONOFF P
BODDICE J
FLANAGAN J

CA No 90 of 2017
DC No 1602 of 2016
DC No 268 of 2017

THE QUEEN

Applicant

BRISBANE

THURSDAY, 31 AUGUST 2017

JUDGMENT

BODDICE J: MCM seeks leave to appeal against sentences of imprisonment imposed on 29 March 2017 for nine counts of indecent treatment of a child under 12; three counts of indecent treatment of a child under 16; one count of incest; three counts of rape; one count of common assault; and one count of indecent treatment of a child under 16, under care.

The ground of appeal sought to be relied upon is that the sentence imposed was manifestly excessive in all the circumstances. Within that ground of appeal, the applicant also contends that the learned sentencing judge erred in failing to give adequate consideration to the delay and the applicant’s rehabilitation, and failed to have due regard to the principles of totality.

The applicant was born on 6 September 1956. He has no prior criminal history. He is married with one son. He has a good work history. All of the offences, bar the offence of indecent treatment of a child under 16, under care, occurred between 31 December 1966 and 1 January 1975. The remaining offence, of indecent treatment of a child under 16, under care, occurred on a date unknown between 31 August 2009 and 2 September 2010. The applicant was aged 52 at the time of that offence. The offending between 31 December 1966 and 1 January 1975 occurred when the applicant was aged between 10 and 18 years.

The applicant was sentenced to imprisonment for three years in respect of each of two of the counts of rape, and lesser periods of imprisonment in respect of the remaining count of rape and the other offences committed between 31 December 1966 and 1 January 1975. All sentences of imprisonment were to be served concurrently. In respect of the offence of indecent treatment of a child under 16, under care, the applicant was sentenced to imprisonment for 12 months, which was ordered to be served cumulatively on the head sentence of three years imposed in relation to the other offences. It was ordered those terms of imprisonment be suspended, after the applicant had served a period of 12 months’ imprisonment, for an operational period of four years.

The offences committed between 31 December 1966 and 1 January 1975 involved two complainants. One was the applicant’s full sister; she was aged between seven and 15 years at the time of the offences. The other was the applicant’s half-sister; she was aged between seven and 14 years at the time of the offences. The offence of indecent treatment of a child under 16, under care, was committed against the applicant’s biological niece; she was aged 14 years at the time of the offence.

The offences against the applicant’s sister involved oral sex and digital and penile penetration of her vagina. The offences…

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 MCM

Details

AGLC: R v MCM [2017] QCA 187
Case: [2017] QCA 187
Decision Date: 31 AUGUST 2017

CaseChat Overview and Summary

The case of R v MCM involves an appeal by the applicant, MCM, against the sentences of imprisonment imposed by the lower court for multiple counts of sexual offences against children, including indecent treatment, incest, and rape. The applicant's primary contention is that the sentences were manifestly excessive, particularly given the delay in prosecution and the applicant's rehabilitation prospects. The applicant also argued that the sentencing judge failed to adequately consider the delay and the principle of totality in imposing the sentences.

The central legal issues in this appeal were whether the sentence imposed was manifestly excessive and if the sentencing judge appropriately considered factors such as delay, rehabilitation, and the principle of totality. The Court of Appeal had to determine whether the sentencing judge exercised his discretion appropriately in light of the gravity of the offences and the mitigating factors presented.

In assessing the appeal, the Court of Appeal considered the severity and nature of the offences, which involved multiple victims over a significant period. The Court noted that the applicant, despite his young age at the time of the earlier offences, had engaged in escalating and violent sexual activities against younger family members. The Court held that the sentencing judge was correct in imposing a significant head sentence, considering the violent nature of the rapes and the impact on the victims. The imposition of a three-year head sentence for the earlier offences and a 12-month sentence for the more recent offence, to be served cumulatively, was found to be a sound exercise of the sentencing discretion. The Court rejected the argument that these sentences were manifestly excessive, particularly given the applicant's reoffending in more recent times. The Court concluded that the sentencing judge had adequately considered the mitigating factors, including delay and rehabilitation, but that these factors did not outweigh the seriousness of the offences.

The Court of Appeal ultimately refused the applicant's application for leave to appeal, affirming the original sentencing decisions. The Court held that the sentences imposed were not manifestly excessive and that the sentencing judge had appropriately balanced all relevant factors in exercising his discretion.

Orders