Lane v The Queen - [2017] VSCA 289

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0119

LESLIE CHARLES LANE	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	FERGUSON CJ and MAXWELL P
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 August 2017
DATE OF JUDGMENT:	11 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 289
JUDGMENT APPEALED FROM:	[2017] VCC 555 (Judge Mullaly)

---

CRIMINAL LAW – Appeal – Sentence – Historic sexual offences against children – Indecent assault – Procuring act of gross indecency – Multiple offences – Sentence 3 years – Partially suspended – Whether manifestly excessive – Guilty plea – Remorse – Rehabilitation – General deterrence – Delay – Understanding of harm – Serious sexual offender – Subsequent convictions for like offending – Whether irrelevant consideration applied – Whether error in partial cumulation – Sentence within range – No specific error – Leave to appeal refused – Sentencing Act 1991 s 6B(2)(a).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F H Todd	Ellinghaus & Linder
For the Respondent	Ms D I Piekusis	Mr J Cain, Solicitor for Public Prosecutions

FERGUSON CJ

MAXWELL P:

On 30 March 2017, the applicant pleaded guilty to three charges of indecent assault upon a male person[1] and two charges of procuring an act of gross indecency with a person under 16.[2] On 10 May 2017, he was sentenced as follows:

[1]Crimes Act 1958 s 68(3A), as amended by the Crimes (Amendment) Act 1967. This section was later repealed by Crimes (Sexual Offences) Act 1980 s 6. Charges 1 and 2 were representative counts, each taking in three separate occasions of similar conduct.

[2]Crimes Act 1958 s 50(1), as amended by the Crimes (Sexual Offences) Act 1980. Subdivisions (8)-(8F) later substituted by s 3 of the Crimes (Sexual Offences) Act 1991.

Charge on Indictment Offence
Maximum
Sentence Cumulation

1. Indecent assault upon a male person.
(Representative charge). 5y 12m 4m

2. Indecent assault upon a male person.
(Representative charge). 5y 18m Base

3. Indecent assault upon a male person. 5y 12m 4m

4. Procuring an act of gross indecency with a person under 16 years. 2y 12m 5m

5. Procuring an act of gross indecency with a person under 16 years. 2y 12m 5m

Total Effective Sentence 3y, 18m suspended for 3y

Non-parole period N/A

Pre-sentence detention declared: Nil

s 6AAA statement: 5y, 3y NPP

Other relevant Orders: Applicant had already been placed on the Sex Offenders Register at a 2006 plea hearing.

Sentenced as a ‘serious sexual offender’ pursuant to s 6B(2)(a) of the Sentencing Act 1991 Declared a serious sexual offender for charges 1-5.

The applicant now seeks leave to appeal against his sentence. For the reasons that follow, we would refuse leave to appeal.

How the offences were committed

The victim was born in March 1967. The applicant and the victim met at an electronics fair in late 1979. The victim was 12 years old at the time, and the applicant was 33 years old (he is now 71 years old). The…

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 Lane v The Queen

Details

AGLC: Leslie Charles Lane v The Queen [2017] VSCA 289
Case: [2017] VSCA 289
Decision Date: 11 October 2017

CaseChat Overview and Summary

In the matter of Lane v The Queen, the appellant faced an appeal against his sentence imposed by the Supreme Court of Victoria. The appellant had been convicted of multiple historical sexual offences against children, including indecent assault and procuring an act of gross indecency. The court was tasked with determining whether the sentence imposed, three years with partial suspension, was manifestly excessive.

The primary legal issue before the court was whether the sentence was manifestly excessive, taking into account factors such as the appellant's guilty plea, remorse, potential for rehabilitation, and the need for general deterrence. The court also considered the delay between the offences and the sentencing, the appellant's understanding of the harm caused, and his subsequent convictions for similar offences. The appellant argued that the court had made an error in partially cumulating the offences and that irrelevant considerations had been applied.

The Court of Appeal found that the sentence was within the appropriate range for the offences and that no specific error had been made in the partial cumulation of the offences. The court acknowledged the appellant's guilty plea, remorse, and potential for rehabilitation, but emphasised the need for general deterrence and the seriousness of the offences. The court held that the sentence was not manifestly excessive and refused leave to appeal under section 6B(2)(a) of the Sentencing Act 1991.

Orders