Lawrence (a pseudonym) v The Queen

Case [2021] VSCA 291


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0193

JOHN LAWRENCE (a pseudonym)[1] Applicant
v
THE QUEEN Respondent

[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.

----

JUDGES: PRIEST and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING: 20 October 2021
DATE OF JUDGMENT: 27 October 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 291
JUDGMENT APPEALED FROM: DPP v Lawrence(a pseudonym) [2020] VCC 1167 (Judge Tinney)

---

CRIMINAL LAW — Appeal — Sentence — Digital rape of sleeping victim — Whether sentence of eight years and six months’ imprisonment manifestly excessive — Whether cumulation ordered on interstate sentence infringed totality principle — Leave to appeal granted — Appeal allowed.

---

APPEARANCES: Counsel Solicitors
For the Applicant: Mr P J Smallwood and
Mr C Grant
Doogue + George Defence Lawyers
For the Respondent: Ms S Clancy Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

  1. On 11 May 2018, a judge of the District Court of NSW sentenced the applicant to an aggregate sentence of 13 years and eight months’ imprisonment, with a non-parole period of 10 years and three months’ imprisonment, for two offences involving the digital penetration of the vagina of the applicant’s nine month old daughter (‘the District Court sentence’).  An appeal against that sentence was dismissed by the Court of Criminal Appeal (NSW) on 12 May 2020.[2]

  1. The present application concerns a sentence for rape imposed upon the applicant by the County Court on 31 July 2020, at a time when the applicant was serving the District Court sentence in Victoria pursuant to the provisions of the Prisoners (Interstate Transfer) Act 1983 (‘PIT Act’).

  1. So far as relevant, ss 27 and 28 of the PIT Act provide:

27  Sentence deemed to have been imposed in this State

(1) Where under an interstate law an order is issued for the transfer to Victoria of a person imprisoned in a participating State and the person is brought into Victoria pursuant to the order, then from the time the person arrives in Victoria—

(a) any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed on the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed on the person; and

(b) any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made—

by a corresponding court of Victoria and, except as otherwise provided in this Act, shall be given effect to in Victoria, and the laws of Victoria shall apply, as if such a court had had…

Continue reading Lawrence (a pseudonym) v The Queen

Sign in free to access the full text

Details
AGLC
Lawrence (a pseudonym) v The Queen [2021] VSCA 291
Case
[2021] VSCA 291
Decision Date

CaseChat Overview and Summary

Lawrence, the appellant, was convicted of multiple instances of digital rape against a sleeping victim. He was sentenced to eight years and six months’ imprisonment with a non-parole period of six years and one month. The High Court of Australia was asked to consider the appeal against the sentence, focusing on whether it was manifestly excessive and whether the cumulation of the sentence with an interstate sentence contravened the totality principle. The Court granted leave to appeal and allowed the appeal in part.

The appellant argued that the sentence was manifestly excessive given the non-violent nature of the crime and the absence of aggravating factors. The defence also contended that the cumulation of the sentence with an interstate sentence violated the totality principle, which requires consideration of all sentences a defendant is serving concurrently. The Crown, however, argued that the sentence was appropriate considering the gravity of the offences and the need to protect society.

The High Court acknowledged the seriousness of the crimes, but found that the sentence was manifestly excessive. The Court considered the totality principle and concluded that the cumulation of the sentences did not adequately account for the concurrent nature of the sentences. As a result, the Court allowed the appeal in part, reducing the sentence and ordering that it should be served concurrently with the interstate sentence. The Court emphasised the need to balance the seriousness of the crimes with the principles of sentencing proportionality and totality.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.