Langton (a pseudonym) v The Queen

[2022] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0046

LEVI LANGTON (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identifying the victims of sexual offending this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, McLEISH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2022
DATE OF JUDGMENT:	4 May 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 79
JUDGMENT APPEALED FROM:	[2022] VCC 221 (Judge Ryan)

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CRIMINAL LAW – Leave to appeal – Sentence – Extension of time – Fresh evidence – Sexual offending against stepdaughter and niece – No psychological or neuropsychological reports produced for plea – Total effective sentence of 11 years and 8 months’ imprisonment – Non-parole period of eight years – Psychological and neuropsychological reports produced for subsequent plea on separate indictment – Impaired mental functioning identified – Whether evidence requires different sentence to avoid miscarriage of justice – Extension of time granted – Leave to appeal refused.

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Counsel
Applicant:		Ms E Clarke
Respondent:		Mr C Boyce QC
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
MCLEISH JA
MACAULAY JA:

1. On 17 February 2017, a jury convicted the applicant of:

   (a)two charges of incest;[2]

   (b)one charge of committing an indecent act with a child under 16;[3]

   (c)two charges of assault;[4] and

   (d)one charge of causing serious injury recklessly.[5]

   [2]Crimes Act 1958 s 44(1) (‘Crimes Act’).

   [3]Ibid s 47(1).

   [4]Contrary to the common law.

   [5]Crimes Act s 17.

2. These charges related to offending against the applicant’s stepdaughter, between 1996 and 2005, when she was between 8 and 17 years old. 

3. There was also a second indictment, which related to earlier offending against the applicant’s niece, between 1986 and 1989, when she was between 7 and 11 years old. A few days after his conviction on the first indictment, the applicant pleaded guilty to the charges in the second indictment, namely: 

   (a)two charges of indecent assault;[6]

   (b)one charge of sexual penetration of a child under the age of 10 years;[7] and

   (c)

   one charge of sexual penetration of a child between the ages of 10 and

   
   

   16 years.[8]

   [6]Ibid s 44(1).

   [7]Ibid s 47(1).

   [8]Ibid s 48(1).

4. On 23 February 2017, there was a plea hearing for both sets of convictions. No psychological or neuropsychological reports were commissioned or filed on the applicant’s behalf. On the plea, the applicant’s counsel did not submit that the applicant suffered impaired mental functioning. To the contrary, counsel described the applicant as having a ‘reasonable level of intellect’, despite being relatively uneducated.

5. On 3 March 2017, the judge sentenced the applicant to a total effective sentence of eight years and eight months’ imprisonment on the first indictment, and six years and six months’ imprisonment on the second, with three years of the latter sentence to be served cumulatively on the former. This produced a total…