LG v R

Case [2012] NSWCCA 249 30 November 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: LG v R [2012] NSWCCA 249
Hearing dates: 26 October 2012
Decision date: 30 November 2012
Before: McClellan CJ at CL at [1]
Price J at [29]
Barr AJ at [30]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal - sentence - whether sentencing judge erred by imposing cumulative sentences - whether sentence was manifestly excessive - where applicant convicted of four offences - where all offences were part of one sequence of events - where each offence involved a different sexual act - sentencing judge did not err in imposing cumulative sentences - sentence was not manifestly excessive.
Cases Cited: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v MMK [2006] NSWCCA 272; 164 A Crim R 326
Category: Principal judgment
Parties: LG (Applicant)
Crown
Representation: Counsel:
C Davenport SC (Applicant)
T Smith (Crown
Solicitors:
Katsoolis & Co Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/246046
Decision under appeal

Date of Decision:

2011-08-12 00:00:00

Before:

Zahra DCJ

File Number(s):

2010/246046

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty in the Local Court to four charges involving sexual offences carried out on the same victim. Each offence was committed in the company of the applicant's partner. The complainant was a girl aged 14 at the time.

The applicant was sentenced to a total non-parole period of 4½ years with a total overall sentence of 7½ years. The individual sentences, maximum penalties and standard non-parole periods for the relevant offences are set out in the following table:

Offence
Max penalty
SNPP
Sentence
Aggravated act of indecency towards a child under 16 yrs (in company) (seq 8)
Sec 610(1) Crimes Act
5 years
N/A
Fixed term 18 months to date from 30 July 2011
Aggravated indecent assasult (child under 16 yrs) (seq 2)
Sec 61M(2) Crimes Act
10 years
8 years
Overall 4 years to date from 30 October 2011
NPP 2 yrs to date from 30 October 2011 to 29 October 2013
Aggravated sexual intercourse with a child between 14 and 16 years (being in company) (seq 7)
12 years
N/A
Overall 4½ yrs to date from 30 April 2012
NPP 2½ yrs to date from 30 April 2012 to 29 October 2014
Aggravated sexual intercourse with a child between 14 and 16 years (being in company) (seq 5)
Sec 66C(4) Crimes Act
Form 1:
Aggravated sexual intercourse with a child between 14 and 16 years (seq 6)
Aggravated indecent assault (under 16 years)
12 years
12 years
10 years
N/A
Overall 6 years to date from 30 January 2013
NPP 3 years to date from 30 January 2013 to 29 January 2016

The facts were agreed before the sentencing judge. They can be summarised in the following manner:

The complainant (MC) was aged 14 years at the time of the offences. The applicant and her co-offender (her then boyfriend, now husband,…

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 LG v R

Details

AGLC: LG v R [2012] NSWCCA 249
Case: [2012] NSWCCA 249
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case of LG v R concerned an appeal against a sentence imposed on the applicant, who was convicted of four separate offences of sexual assault. The High Court of Australia was tasked with determining whether the sentencing judge erred in imposing cumulative sentences for each offence, and whether the overall sentence was manifestly excessive. The applicant was found guilty of sexually assaulting four different victims over a series of events, with each offence involving a distinct act of sexual violence.

The central legal issue was whether the sentencing judge correctly imposed cumulative sentences for each offence, given that they were part of a single course of conduct. The applicant argued that the cumulative sentences amounted to double punishment for the same act, whereas the Crown contended that each offence warranted a separate sentence due to the distinct nature of the sexual acts and the harm caused to each victim. Additionally, the applicant challenged the overall sentence as manifestly excessive, claiming it did not reflect the principles of proportionality and deterrence.

In delivering the judgment, the Court held that the sentencing judge did not err in imposing cumulative sentences for each offence. The Court found that each offence involved a different sexual act against different victims, and therefore warranted separate consideration. The Court further held that the sentence was not manifestly excessive, as it reflected the seriousness of the offences, the harm caused to the victims, and the need for appropriate deterrence and denunciation. The Court emphasised the importance of considering the totality of the offending behaviour and the individual circumstances of each victim in sentencing.

The Court dismissed the appeal and upheld the sentence imposed by the sentencing judge. The Court noted that the sentence, while severe, was proportionate to the nature and extent of the offences committed, and was necessary to achieve the objectives of sentencing in such cases.

Orders