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.
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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:
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]
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’).
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…
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.
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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.