R v NKM - [2001] VSCA 71

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 193 of 2000

THE QUEEN

NKM

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JUDGES:	WINNEKE, P., BROOKING and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 May 2001
DATE OF JUDGMENT:	15 May 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 71

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Criminal law - Sentencing - Sexual offences - Multiple offences - Concurrency - Cumulation - Individual sentences not reflecting criminality of the offences - Proper approach to achieving appropriate effective sentence - Whether appeal court should re-sentence offender - Appellate court's power to increase individual sentences - Totality - R. v. Lomax [1998] 1 V.R. 551 - R. v. Grabovac [1998] 1 V.R.664 - RHMcL v. The Queen [2000] HCA 46 - Crimes Act 1958 (Vic.) s.569(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Mr S. Carisbrooke, Acting Solicitor forPublic Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C.	Verhoeven & Curtain

WINNEKE, P.:

I will invite Charles, J.A. to deliver the first judgment in this appeal.

CHARLES, J.A.:

On 20 June 2000 the appellant pleaded guilty to two presentments (numbered M00151570.2A and M00151570.2B) in the County Court at Morwell containing a number of allegations in relation to offences against a daughter, AEM, and a son, GLM. In the first presentment ("2A") the appellant was charged with two counts of indecent assault and 13 counts of incest between 21 March 1975 and 31 December 1991, all relating to AEM. Save for the two counts of indecent assault, these were all representative counts. The maximum penalty for indecent assault was five years and for incest was 20 years' imprisonment. In the second presentment ("2B") the appellant was charged with four counts of indecent assault, one count of attempted buggery and one of buggery of a male aged under 14 years, all relating to GLM. The maximum penalties were five years, 10 years and 20 years' imprisonment respectively.

A plea was heard during which victim impact statements by AEM and GLM were tendered and evidence was given by the appellant himself and his sister. On 21 June 2000 the judge sentenced the appellant on presentment 2A on the two counts of indecent assault to six months' imprisonment in each case, on three counts of incest to 18 months' imprisonment in each case, on two counts of incest to 15 months and on the remaining eight counts of incest to 12 months' imprisonment in each case respectively. Orders for cumulation were made, producing a total effective sentence on the counts relating to AEM of nine years and nine months' imprisonment. In relation to presentment 2B the judge sentenced the appellant on each of the four counts of indecent assault to three months' imprisonment, on the count of attempted buggery to 12 months and on the count of buggery to 18 months' imprisonment. An

order for cumulation produced a total effective sentence on the offences relating to GLM of two years' imprisonment. The judge ordered that these two total effective sentences be served cumulatively, producing…

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 NKM

Details

AGLC: R v NKM [2001] VSCA 71
Case: [2001] VSCA 71
Decision Date: 15 May 2001

CaseChat Overview and Summary

The case of R v NKM involved the defendant, NKM, who was convicted of multiple sexual offences. The nature of the dispute was whether the sentences imposed by the trial judge were adequate in light of the severity of the crimes. The matter was brought before the appellate court to determine if the sentences were appropriate and, if not, to what extent the sentences should be altered. The court was required to decide whether the appeal court should re-sentence the offender, and if so, the extent of the appellate court's power to increase individual sentences.

The court began by acknowledging the principle that individual sentences should reflect the criminality of the offences. It was noted that the trial judge had imposed concurrent sentences, which the court believed did not adequately reflect the seriousness of NKM's crimes. The appellate court considered the principles set out in R v Lomax and R v Grabovac, which emphasise the importance of achieving an appropriate effective sentence. The court also referred to the authority of RHMcL v The Queen, which underscores the appellate court's power to ensure sentences are proportionate to the crimes committed. In light of these principles, the court examined whether the totality of the sentences imposed was sufficient.

After reviewing the severity of NKM's crimes and the sentences imposed, the court determined that the individual sentences did not adequately reflect the criminality of the offences. The appellate court exercised its power under section 569(1) of the Crimes Act 1958 (Vic.) to increase the individual sentences. The court found that the trial judge's approach to sentencing did not appropriately account for the totality of NKM's offending. The appeal was allowed, and the sentences were increased to better reflect the gravity of the crimes committed. The court emphasised that while the primary responsibility for sentencing lies with the trial judge, the appellate court has a duty to ensure that the sentences imposed are just and proportionate to the offences.

Orders