LDF v The Queen - [2011] VSCA 237

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0870

LDF
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	MAXWELL P, WEINBERG and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 March 2011
DATE OF ORDERS	30 March 2011
DATE OF JUDGMENT	24 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 237
JUDGMENT APPEALED FROM	R v [LDF] (Unreported, County Court of Victoria, Judge Jenkins, 14 October 2009)

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CRIMINAL LAW – Appeal – Sentence – Incest – Representative counts – Two daughters – Recurrent offending – Moderate risk of reoffending – No victim empathy – Prosecution errors – Incorrect maximum penalty – Incorrect factual summary – Crown concessions – Appeal allowed – Resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Amad & Amad
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

The appellant pleaded guilty in the County Court to multiple sexual offences, which included five counts of incest. There were three victims, two of whom were his daughters. He was sentenced as set out in the table at paragraph 3 below.

The sentencing was affected by error, however, as the Crown conceded in an appeal submission which was exemplary both for its candour and for its thoroughness. The concessions were appropriately made and, as the Crown submitted, necessitated a significant reduction in the sentence imposed.

Accordingly, at the conclusion of the appeal hearing the appellant was resentenced as set out in the table below. These are my reasons for joining in those orders.

Count	Victim	Charge	Maximum	Original Sentence	Original Cumulation	New Sentence	New Cumulation
1	PS	Incest (rep)	20y	5y	2y	5y	1yr 6m
2	PS	Incest	20y	2y	-	2y	-
3	PS	Incest (rep)	20y	8y	Base	6y	Base
4	PS	Incest	25y	3y	6m	3y	6m
5	PS	Indecent Assault (rep)	10y	3y	15m	2y	6m
6	CH	Indecent Act C < 16	10y	18m	12m	1y	6m
7	LP	Incest	25y	3y	15m	3y	1y
8	LP	Indecent Assault (rep)	10y	3y	2y	3y	2y
TES NPP				6AAA 16y 20y 12y 17y	6AAA 12y 14y 9y 11y

Circumstances of the offending

The circumstances of the offending were set out in the Crown opening, an edited version of which appears as Appendix A to these reasons.

Error in maximum penalty

The sentencing judge imposed sentence on all of the incest counts on the basis of a maximum penalty of 25 years’ imprisonment. The prosecutor had made a submission to that effect, on which her Honour understandably relied. As the Crown’s appeal submission pointed out, however, the conduct giving rise to counts 1, 2 and 3 was committed before 1 September 1997, when the applicable maximum was 20 years’ imprisonment.[1]
[1]Sentencing and Other Acts (Amendment) Act 1997 s 2(2).

An error as to the applicable maximum may, but need not, vitiate the exercise of the sentencing discretion.[2] In the present case, as the Crown conceded, the error appeared to have materially affected…

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 LDF v The Queen

Details

AGLC: LDF v The Queen [2011] VSCA 237
Case: [2011] VSCA 237
Decision Date: 24 August 2011

CaseChat Overview and Summary

The appellant, LDF, was convicted in the County Court of Victoria of multiple counts of incest against his two daughters. The convictions were appealed to the Court of Appeal, with LDF challenging the severity of the sentences imposed. The Crown, represented by The Queen, sought to uphold the original sentences. The court was required to determine whether the sentences were manifestly excessive and whether the trial judge had erred in his assessment of the risk of reoffending and the lack of victim empathy.

The court examined the principles of sentencing in the context of incestuous relationships, considering the gravity of the offences and the appellant's history of recurrent offending. The court noted that the trial judge had correctly identified the representative counts but had erred in assessing the risk of reoffending as moderate rather than high. Additionally, the court found that the trial judge had not sufficiently considered the lack of victim empathy as a significant aggravating factor. The court also highlighted errors made by the prosecution, including an incorrect maximum penalty and an inaccurate factual summary.

Given the identified errors and misassessments, the court allowed the appeal and ordered a resentencing hearing. The court emphasised that the original sentences were manifestly excessive due to the trial judge's miscalculation of the risk of reoffending and the failure to adequately consider the lack of victim empathy. The court also noted the importance of accurate legal submissions and factual presentations in criminal trials.

Orders