Criminal law and procedure - Sentencing - Sexual offences against children overseas - One count of engaging in sexual intercourse with a child under 16 - Eight counts of committing an act of indecency on a child under 16 - Fourteen counts of being in possession of child pornography in WA - One count of displaying child pornography in WA - Deterrent aspects of sentencing - Total effective sentence of 14 years reduced to 11 years

Legislation:

Crimes Act 1914 (Cth), s 50BA, s 50BC(a)

Censorship Act 1996 (WA), s 60(3), s 60(4)

Result:

Leave to appeal granted
Appeal allowed
Total effective sentence reduced from 14 years to 11 years

Representation:

Counsel:

Applicant: Mr S W O'Sullivan
Respondent: Mr S D Hall

Solicitors:

Applicant: Ian R Farquhar & Co
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Inge v The Queen (1999) 73 ALJR 1563
Power v The Queen (1974) 131 CLR 623 at 629
R v Jones [1999] WASCA 24

Case(s) also cited:

Bugmy v The Queen (1990) 169 CLR 525
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Hoare v The Queen (1989) 167 CLR 348
Jarvis v The Queen (1993) 20 WAR 201
R v el Karhani (1990) 51 A Crim R 123
R v GP (1997) 18 WAR 196
R v Jones [1999] WASCA 24
R v Liddington (1997) 18 WAR 394
R v Oancea (1990) 51 A Crim R 141
R v Olbrich (1999) 73 ALJR 1550
R v Paunovic (1990) 51 A Crim R 174
R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997
Veen v The Queen (No 2) (1988) 164 CLR 465
Wicks v The Queen (1989) 3 WAR 372
Woods v The Queen (1994) 14 WAR 341

KENNEDY J: The facts are set out in the reasons for judgment of Wallwork J, and there is no necessity for my repeating them at length.
It is useful to recall the purpose of the provisions of the Commonwealth legislation under which the applicant was charged. In his Second Reading speech, delivered on 3 May 1994, the Minister for Justice informed the House of Representatives that the principal aim of the new Part IIIA of the Crimes Act 1914 (Cth), which is headed "Child Sex Tourism", was to provide a real and enforceable deterrent to the sexual abuse of children outside Australia by Australian citizens and residents. He continued:
"It is unfortunate that a minority of Australian citizens and residents are now known internationally as major offenders in several Asian countries. They exploit the vulnerability of children in foreign…

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 Lee v The Queen

Details

AGLC: Lee v The Queen [2000] WASCA 73
Case: [2000] WASCA 73
Decision Date: 22 MARCH 2000

CaseChat Overview and Summary

The case of Lee v The Queen was heard in the Supreme Court of Western Australia. The defendant, Lee, was found guilty of multiple sexual offences against children, both in Australia and overseas. The specific charges included engaging in sexual intercourse with a child under 16, committing acts of indecency on children under 16, possession and display of child pornography. The court was required to determine the appropriate sentence for Lee, taking into account the severity and nature of the crimes committed.

The primary legal issue before the court was to assess the appropriate balance between punitive and deterrent aspects of sentencing for such serious offences. The court had to consider the impact of the crimes on the victims, the circumstances in which they were committed, and the need to ensure that the sentence served as a deterrent to others who might commit similar offences. Additionally, the court had to ensure that the sentence was proportionate to the gravity of the crimes, while also considering any mitigating factors that might exist.

In reaching its decision, the court emphasised the heinous nature of the offences, particularly those involving sexual exploitation of children. The court noted the need for a sentence that would adequately reflect the seriousness of the crimes and serve as a strong deterrent. The court also considered the possibility of rehabilitation, as well as the impact on Lee’s family. After a thorough review, the court determined that the initial total effective sentence of 14 years was excessive and reduced it to 11 years, while maintaining a strong emphasis on the deterrent aspect of the sentence.

The final orders of the court were that Lee be sentenced to a total effective term of 11 years imprisonment, with appropriate parole conditions to ensure public safety and support for potential rehabilitation efforts. The court also ordered that Lee be subject to ongoing monitoring and support services to address any underlying issues that might contribute to his criminal behaviour.

Orders