L J v The Queen - [2011] VSCA 3

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0795

LJ	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 January 2011
DATE OF JUDGMENT	14 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 3
JUDGMENT APPEALED FROM	R v [LJ] (Unreported, County Court of Victoria, Judge Hampel, 26 August 2009)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to two counts of incest involving his step-daughters – Abuse occurred between 2000 and 2005 – Each count characterised as a ‘rolled-up count’ – Crown asked to provide submission as to appropriate range in accordance with R v MacNeil-Brown (2008) 20 VR 677 – Crown submission that correct range between six years and six months and eight years and six months – Sentencing judge rejected Crown submission and imposed head sentence of nine years with non-parole period of six years – Judge inferred that Crown submission based on mistaken belief by the prosecutor as to the number of acts of incest committed within each count – No proper basis for inference to be drawn – Specific error established – Appeal allowed – Relevant factors included past co-operation with authorities bearing significantly upon burdensome nature of imprisonment – R v Verdins (2007) 16 VR 269 – Appellant re-sentenced to seven years’ imprisonment with non-parole period of four years and six months – Appeal decision no point of general principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Tony Hanneberry Lawyers
For the Crown	Mr G Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

The appellant, LJ, pleaded guilty in the County Court at Melbourne to two counts of incest. Each count concerned one of his step-daughters, whom we shall designate H and J respectively. Count 1 alleged that, on a date between 1 January 2000 and 31 December 2002, the appellant had taken part in an act of sexual penetration with H by introducing his penis into her mouth. Count 2 involved essentially the same conduct with J, though the dates in question in relation to her were between 1 January 2001 and 31 December 2005.

The background facts can be briefly stated. In October 1999, the appellant commenced a relationship with a woman who had four young children. They married in June 2000, and the appellant thereby became step-father to those children. The eldest two were girls, H and J, then aged six and seven respectively. Shortly thereafter, the appellant began to sexually abuse the two girls.

The abuse came to light in 2007, after the appellant moved out of the family home. The older girl, J, told her mother that the appellant had made her and her sister suck his penis. His wife confronted him, but he initially denied any wrongdoing. When questioned by the police, he admitted to some sexual activity with the girls, but maintained, as he still did at the time of the plea, that…

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 L J v The Queen

Details

AGLC: L J v The Queen [2011] VSCA 3
Case: [2011] VSCA 3
Decision Date: 14 January 2011

CaseChat Overview and Summary

The appellant in this case pleaded guilty to two counts of incest involving his step-daughters. The abuse occurred between 2000 and 2005. Each count was characterised as a 'rolled-up count'. The sentencing judge imposed a head sentence of nine years with a non-parole period of six years, rejecting the Crown's submission that the appropriate range was between six years and six months and eight years and six months. The Crown had asked to provide a submission as to the appropriate range in accordance with R v MacNeil-Brown. The appellant appealed the sentence, arguing that the sentencing judge had erred by rejecting the Crown's submission and imposing a sentence that was outside the range suggested by the Crown.

The legal issues in this case included whether the sentencing judge had erred in rejecting the Crown's submission and imposing a sentence that was outside the range suggested by the Crown. The court was also required to consider the relevant factors that should be taken into account when imposing a sentence for incest, including the past co-operation of the appellant with the authorities and the burdensome nature of imprisonment. The appellant argued that the sentencing judge had erred by inferring that the Crown's submission was based on a mistaken belief as to the number of acts of incest committed within each count. The court considered whether this inference was justified and whether it was appropriate to re-sentence the appellant.

The court allowed the appeal and re-sentenced the appellant to seven years' imprisonment with a non-parole period of four years and six months. The court found that the sentencing judge had erred by rejecting the Crown's submission and imposing a sentence that was outside the range suggested by the Crown. The court also found that the sentencing judge had erred by inferring that the Crown's submission was based on a mistaken belief as to the number of acts of incest committed within each count. The court held that there was no proper basis for the inference to be drawn, and that the specific error established warranted the appeal being allowed. The court also considered the relevant factors that should be taken into account when imposing a sentence for incest, including the past co-operation of the appellant with the authorities and the burdensome nature of imprisonment. The appeal decision was not considered to be a point of general principle.

The final orders of the court were that the appeal be allowed, the sentence imposed by the sentencing judge be quashed, and the appellant be re-sentenced to seven years' imprisonment with a non-parole period of four years and six months. The appeal decision was not considered to be a point of general principle.

Orders