Lefoe v The King - [2024] VSCA 131

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0094

SHAHN LEFOE	Appellant
v
THE KING	Respondent

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JUDGES:	McLEISH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2024
DATE OF JUDGMENT:	13 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 131
JUDGMENT APPEALED FROM:	[2023] VCC 379 (Judge Dalziel)

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CRIMINAL LAW – Appeal – Sentence – Four charges of sexual penetration of child under 16 – Offending in quick succession on single occasion – Base sentence 5 years – Total effective sentence 8 years – Non-parole period 5 years and 6 months – Approximately 2 years and 8 months of immigration detention served before conviction – Whether total effective sentence manifestly excessive having regard to period of immigration detention – Sentence did not adequately reflect loss of liberty already suffered through immigration detention – Nature of offending did not warrant substantial cumulation – Appeal allowed – Total effective sentence 6 years and 6 months – Non-parole period 4 years.

Underwood v The Queen [No 2] [2018] VSCA 87, Sahhitanandan v The Queen [2019] VSCA 115, followed.

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Counsel
Appellant:		Ms J McColl
Respondent		Mr R Gibson KC
Solicitors
Appellant:	Victoria Legal Aid
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
NIALL JA:

On 19 July 2022, a jury in the County Court found the appellant not guilty of one charge of sexual assault of a child under 16 and guilty of four charges of sexual penetration of a child under 16, contrary to s 49B(1) of the Crimes Act 1958. The plea was heard on 24 February 2023. On 9 March 2023 the appellant was sentenced as follows:

Charge on indictment	Offence	Maximum penalty	Sentence	Cumulation
2	Sexual penetration of a child under 16	15 years	5 years	1 year
3	Sexual penetration of a child under 16	15 years	5 years	1 year
4	Sexual penetration of a child under 16	15 years	4 years, 6 months	1 year
5	Sexual penetration of a child under 16	15 years	5 years	Base
Total effective sentence:		8 years
Non-parole period:		5 years 6 months
Pre-sentence detention declared:		312 days[1]
Other relevant orders: 1. Sex offender registration for a period of 15 years

[1]The parties agreed that the correct figure was 313 days, and invited the Court to correct the orders of the County Court in this respect, even if the appeal were dismissed: Criminal Procedure Act 2009, s 325.

Circumstances of offending

The complainant was 12 years old. She was distantly related to the appellant[2] by marriage but she and the appellant had not previously met. She lived in New Zealand, and was visiting Australia with her grandmother at the time of the offending.
[2]The appellant was granted leave to appeal on the papers, on 30 August 2023.
On 3 August 2019, the complainant and her grandmother attended a family gathering. The appellant was aged 27 and lived at the address with his parents, partner and children.
Over the…

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 Lefoe v The King

Details

AGLC: Lefoe v The King [2024] VSCA 131
Case: [2024] VSCA 131
Decision Date: 13 June 2024

CaseChat Overview and Summary

The appellant, Lefoe, was convicted on four counts of sexual penetration of a child under 16 years of age. The offences occurred in quick succession on a single occasion. Following his conviction, the appellant lodged an appeal against the sentence imposed by the trial judge, contending that the total effective sentence of 8 years, with a non-parole period of 5 years and 6 months, was manifestly excessive when taking into account the approximately 2 years and 8 months of immigration detention already served prior to his conviction. The central legal issue before the court was whether the total effective sentence imposed was manifestly excessive considering the period of immigration detention already served by the appellant and whether it adequately reflected the loss of liberty already suffered through immigration detention. Additionally, the court had to consider whether the nature of the offending warranted substantial cumulation of sentences.

The court noted that the nature of the offending did not warrant substantial cumulation, and the sentence did not adequately reflect the loss of liberty already suffered through immigration detention. It was held that the sentence did not adequately reflect the loss of liberty already suffered through immigration detention and that the nature of the offending did not warrant substantial cumulation. The court found that the total effective sentence of 8 years, with a non-parole period of 5 years and 6 months, was manifestly excessive. Consequently, the appeal was allowed, and the total effective sentence was reduced to 6 years and 6 months, with a non-parole period of 4 years.

In light of the findings, the court ordered the appellant's sentence to be reduced to a total effective sentence of 6 years and 6 months, with a non-parole period of 4 years. This decision was made in accordance with the principles outlined in Underwood v The Queen [No 2] and Sahhitanandan v The Queen, which emphasise the need for a sentence that adequately reflects the loss of liberty already suffered and considers the nature of the offending when determining the appropriate level of cumulation.

Orders