R v MKG - [2006] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 247 of 2005

THE QUEEN
	v.
MKG

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JUDGES:	BUCHANAN, CHERNOV and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 June 2006
DATE OF JUDGMENT:	8 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 131

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CRIMINAL LAW – Sentence – Incest – Indecent acts with child under 16 years – 3 counts were representative counts – Cumulation – Whether judge erred in ordering full cumulation on all counts – Whether cumulation order offended principle of totality – Error by judge constituted by failure to reflect gravity of offences in individual sentences – Appellant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr C.B. Boyce	Andrew George Solicitors

BUCHANAN, J.A.:

I will ask Chernov, J.A. to deliver the first judgment in this matter.

CHERNOV, J.A.:

On 10 June 2005, the appellant pleaded guilty to two counts of committing an indecent act with a child under the age of 16 years (counts 1 and 2) and two counts of incest (counts 3 and 4) contrary to ss.47(1) and 44(1) of the Crimes Act 1958, respectively. The maximum prescribed penalty for the former is 10 years' imprisonment and for incest, 25 years' imprisonment. On 10 August 2005, after hearing a plea in mitigation, the learned sentencing judge sentenced the appellant to twelve months' imprisonment in respect of count 1, which was a representative count, and to six months' imprisonment on count 2. In respect of each of counts 3 and 4, both of which were representative counts for which the appellant was sentenced as a serious offender pursuant to s.6F(1) of the Sentencing Act 1991, her Honour imposed sentences of three years' imprisonment. Her Honour also declared that the appellant was a registrable offender under the Sex Offenders Registration Act 2004. The learned sentencing judge ultimately ordered that the sentence on count 3 was to be the base sentence and that the sentences on counts 1, 2 and 4 were to be served cumulatively upon the sentence imposed on count 3, thereby producing a total effective sentence of seven and a half years' imprisonment. Her Honour directed that the appellant serve a minimum term of four years' imprisonment before becoming eligible for parole. By notice dated 24 August 2005, the appellant sought leave to appeal against the sentence pursuant to s.582 of the Crimes Act 1958 and, on 3 February 2006, a judge of this Court granted the appellant leave (it having been conceded by the Crown that there was a reasonably arguable ground of appeal).

Circumstances of the offences

Before dealing with the grounds of appeal, it is necessary to set out briefly the circumstances of the offending. At the time of the offences, the appellant was aged 42 to 43 years. The complainant, who is the appellant's biological daughter, was aged 12 and 13 years during the period of the offending. The conduct the subject of count 1,…

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 MKG

Details

AGLC: R v MKG [2006] VSCA 131
Case: [2006] VSCA 131
Decision Date: 8 June 2006

CaseChat Overview and Summary

In the case of R v MKG, the appellant was convicted on three counts of engaging in indecent acts with a child under 16 years of age. The case was heard in the court of appeal, which was tasked with reviewing the sentencing decision made by the trial judge. The appellant argued that the trial judge erred in ordering full cumulation on all counts, thereby failing to reflect the gravity of the individual offences in the sentences imposed. The court of appeal was required to determine whether the judge's approach to cumulation was correct and whether it adhered to the principle of totality.

The primary legal issue before the court was whether the trial judge had erred in ordering full cumulation on all counts. The court of appeal considered whether the trial judge had sufficiently reflected the gravity of the individual offences in the sentences imposed and whether the cumulation order was consistent with the principle of totality. The court noted that the principle of totality requires the court to consider the cumulative effect of multiple sentences and to ensure that the overall sentence reflects the overall gravity of the offending. The court also highlighted that the trial judge had a discretion to order full cumulation, partial cumulation, or no cumulation at all, depending on the circumstances of the case.

The court of appeal held that the trial judge had erred in ordering full cumulation on all counts. The court found that the judge had failed to sufficiently reflect the gravity of the individual offences in the sentences imposed. The court held that the judge's approach to cumulation was inconsistent with the principle of totality and amounted to an error of law. The court of appeal resentenced the appellant, ordering partial cumulation on two of the counts and no cumulation on the third count. The court emphasised that the sentences imposed should reflect the overall gravity of the offending, taking into account the individual circumstances of each offence.

The court of appeal ordered that the appellant be resentenced, with partial cumulation on two of the counts and no cumulation on the third count. The court emphasised the importance of considering the cumulative effect of multiple sentences and ensuring that the overall sentence reflects the overall gravity of the offending. The court noted that the principle of totality requires the court to consider the individual circumstances of each offence and to impose a sentence that is proportionate to the gravity of the offending. The court held that the trial judge's failure to do so amounted to an error of law, which warranted the intervention of the court of appeal.

Orders