Robert Maine v The Queen - [2017] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0015

ROBERT MAINE	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 96
JUDGMENT APPEALED FROM:	[2016] VCC 1992 (Judge Wischusen)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Use of a carriage service to access child pornography material – Knowingly possessing child pornography material – Total effective sentence of four years and six months’ imprisonment – Non-parole period of three years – No specific error in assessing prospects of rehabilitation – Manifest excess – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Stary Norton Halphen
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

The applicant, Robert Maine (‘Maine’), applies for leave to appeal against sentence.

He pleaded guilty to one charge of using a carriage service to access child pornography and one charge of knowingly possessing child pornography. He was sentenced by the County Court on 16 December 2016 as follows:[1]
[1]R v Maine [2016] VCC 1992 [30]–[34] (‘Reasons’).

Charge Offence Maximum penalty Sentence Cumulation

1
Use a carriage service to access child

pornography material [Criminal Code 1995 (Cth) s 474.19(1)]
15 years’ imprisonment 3 years and 6 months’ imprisonment Imprisonment to commence 18 months before the expiration of sentence on charge 2. To serve 2 years before being eligible for parole.

2 Knowingly possess child pornography material [Crimes Act 1958 s 70] 5 years’ imprisonment 2 years and 6 months’ imprisonment Base with a non-parole period of 18 months.

Total effective sentence 4 years and 6 months’ imprisonment

Non-parole period 3 years

Pre-sentence detention declared 33 days

Section 6AAA statement (Charge 2) 3 years and 6 months’ imprisonment with a non-parole period of 2 years.

Other orders Sentenced as a serious sexual offender in respect of charge 2.
Obligation to report per s 34 of the Sex Offenders Registration Act 2004 for a period of 15 years.[2]
[2]Maine conceded that the reporting obligation should have been stated to apply for life, not 15 years.

Circumstances of the offending[3]

[3]The circumstances of the offending have been summarised from the Prosecution Opening for Plea, 8 December 2016, which was accepted and treated as an agreed statement of facts.

Maine was identified as the subscriber of an IP address used to access child pornography by the Australian Federal Police and a search warrant was executed at his address on 17 June 2015.

The police seized two computer towers, a hard drive and a USB stick which were found to contain either child pornography material or metadata of deleted child pornography material. Maine was interviewed and gave a series of answers designed to deflect responsibility; some answers were found…

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 Robert Maine v The Queen

Details

AGLC: Robert Maine v The Queen [2017] VSCA 96
Case: [2017] VSCA 96
Decision Date: 3 May 2017

CaseChat Overview and Summary

The case of Robert Maine v The Queen involved the appellant, Robert Maine, who was convicted of possessing child pornography material. Maine was sentenced to a total effective period of imprisonment of four years and six months, with a non-parole period of three years. The appellant applied for leave to appeal against his sentence. The central issue before the court was whether the sentence imposed was manifestly excessive. The appeal hinged on whether the trial judge had made an error in assessing the prospects of Maine's rehabilitation, which could potentially render the sentence manifestly excessive.

The court examined the principles governing the assessment of a manifestly excessive sentence. It noted that while the trial judge had considered the factors relevant to the prospects of rehabilitation, the appellant argued that there was no specific error in the assessment. The court found that although there was no specific error in the trial judge's assessment, the sentence imposed was nonetheless manifestly excessive. The court considered the totality of the circumstances, including the nature and extent of Maine's offending, the impact of his crimes, and the need for general deterrence.

The court concluded that the sentence, while within the statutory maximum, was manifestly excessive due to the gravity of Maine's crimes and the need for general deterrence. The court granted leave to appeal, finding that the sentence did not adequately reflect the seriousness of the offending and the need to protect society. The court acknowledged the importance of rehabilitation but determined that in this case, the sentence needed to be reconsidered in light of the manifestly excessive nature of the original sentence. The final orders included the grant of leave to appeal and a direction for the case to be remitted to the original sentencing court for reconsideration of the sentence.

Orders