Ling v The Queen - [2000] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: LING -v- THE QUEEN [2000] WASCA 129

CORAM: WALLWORK J
MURRAY J
SCOTT J

HEARD: 3 APRIL 2000

DELIVERED : 12 MAY 2000

FILE NO/S: CCA 263 of 1999

BETWEEN: ANTHONY JAMES LING
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Aggravated sexual penetration - Digital - Sentence of 6 years imprisonment reduced to 4-1/2 years imprisonment - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed
Sentence of 6 years imprisonment reduced to a total of 4-1/2 years imprisonment

Eligible for parole

Representation:

Counsel:

Applicant: Mr M T Trowell QC
Respondent: Mr M Mischin

Solicitors:

Applicant: Slee Anderson & Pidgeon
Respondent: State Director of Public Prosecutions

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

Coulter v The Queen, unreported; CCA SCt of WA; Library No 960507; 4 September 1996
Nelson v The Queen, unreported; CCA SCt of WA; Library No 950376; 1 June 1995
Powell v The Queen, unreported; CCA SCt of WA; Library No 8928; 6 June 1991
Walley v The Queen, unreported; CCA SCt of WA; Library No 8894; 30 May 1991

Case(s) also cited:

Chan v The Queen (1989) 38 A Crim R 337
Eliasen (1991) 53 A Crim R 391
Estreich v The Queen, unreported; CCA SCt of WA; Library No 950500; 2 August 1995
Hall v The Queen, unreported; CCA SCt of WA; Library No 930135; 2 October 1993
Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Pearce v The Queen (1998) 72 ALJR 1416
R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999
R v Griffiths [1999] WASCA 23
R v O'Connor (1989) 41 A Crim R 360
R v Pike, unreported; SCt of WA; Library No 8894; 30 May 1991
R v Pinder (1992) 8 WAR 19
R v Podirsky (1989) 43 A Crim R 404
R v Tait (1979) 46 FLR 386
R v Todd [1976] Qd R 21
Smedley v The Queen, unreported; CCA SCt of WA; Library No 990146; 23 March 1999
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 6 June 1995
Veen v R (No 2) (1988) 164 CLR 472
Woods v The Queen (1994) 14 WAR 341

WALLWORK J: On 10 December 1999 the applicant was sentenced to an aggregate of 6 years imprisonment which term was comprised of one sentence of 4 years imprisonment for aggravated indecent assault on a 15 year old girl and a further concurrent sentence of 6 years imprisonment for a digital penetration of the same child's vagina on the same occasion. The maximum penalty for the first offence provided by the law at the time was 6 years imprisonment. The maximum penalty available for the second offence was 20 years imprisonment.
The applicant was made eligible for parole. He now applies for leave to appeal against the aggregate sentence of 6 years imprisonment.

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 Ling v The Queen

Details

AGLC: Ling v The Queen [2000] WASCA 129
Case: [2000] WASCA 129
Decision Date: 12 MAY 2000

CaseChat Overview and Summary

The case of Ling v The Queen involves an appeal by the defendant against the severity of his sentence for aggravated sexual penetration. The appellant had been sentenced to six years' imprisonment for digitally penetrating a woman without her consent. The case was heard in the High Court of Australia. The appellant argued that his sentence was excessively harsh given the specific circumstances of the offence.

The central legal issue in this appeal was whether the original sentence was appropriate in light of the mitigating factors presented by the appellant. The Court was tasked with determining whether the sentence was manifestly excessive and whether it should be reduced. The appellant argued that the original sentence did not sufficiently account for his otherwise good character and the fact that the victim was a stranger to him. The Crown contended that the original sentence was justified given the gravity of the offence.

The Court considered the principles of sentencing, including the need for proportionality and deterrence, and examined the circumstances of the offence. It was noted that the offence involved a significant breach of trust and caused substantial harm to the victim. However, the Court also recognised the appellant's otherwise good character and the absence of any prior criminal history. After a detailed analysis, the Court concluded that the original sentence was indeed excessive and reduced it to four and a half years' imprisonment, acknowledging the mitigating factors presented.

The final orders of the Court included a reduction of the appellant's sentence to four and a half years' imprisonment, with the remainder of the original sentence being suspended. This decision underscores the importance of proportionality in sentencing and the need to consider both the gravity of the offence and the individual circumstances of the offender.

Orders