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Lockyer (a pseudonym) v The Queen

Lockyer (a pseudonym) v The Queen

Case [2020] VSCA 321 9 December 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0128

JULIAN LOCKYER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	PRIEST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 December 2020
DATE OF JUDGMENT:	9 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 321
JUDGMENT APPEALED FROM:	[2020] VCC 323 (Judge Brimer)

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CRIMINAL LAW – Appeal – Sentence – Rape – Common assault – Persistent contravention of family violence intervention order – Committing indictable offence whilst on bail – Total effective term of 12 years and 6 months’ imprisonment with non-parole period of 10 years – Whether total effective term, individual sentences, and non-parole period manifestly excessive – Applicant Indigenous Australian – Disadvantaged upbringing – No relevant prior convictions – Reasonable prospects of rehabilitation – Leave to appeal granted – Appeal allowed – Applicant resentenced to total effective term of 9 years’ imprisonment with non-parole period of 6 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms A Dixon	Furstenberg Law
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

WEINBERG JA:

On 28 August 2019, the applicant was convicted after a trial in the County Court of one charge of common assault and two charges of rape. On 6 November 2019, a plea hearing was conducted in respect of those charges. On that same date, the applicant also pleaded guilty to a separate charge, on a different indictment, of persistent contravention of a family violence intervention order.

Subsequently, on 28 January 2020, the applicant pleaded guilty to a summary charge of committing an indictable offence whilst on bail. That charge arose out of the offending that gave rise to one of the charges of rape.

On 25 March 2020, the applicant was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

Indictment J10467378.1

1 Common assault [Common law, s 320 — Crimes Act 1958] 5 years 2 years Nil

2 Rape [s 38(1) — Crimes Act 1958] 25 years 11 years Base

3 Rape [s 38(1) — Crimes Act 1958] 25 years 10 years 1 year

Indictment J10467378.1B

1 Persistent contravention of an FVIO [ss 123 and 125A — Family Violence Protection Act 2008] 5 years 1 year 6 months

Related summary offence

— Committing an indictable offence whilst on bail [s 30B — Bail Act 1977] 3 months 2 months Nil

Total effective sentence: 12 years and 6 months

Non-parole period: 10 years

Pre-sentence detention declared: 735 days

By notice dated 1 July 2020, the applicant sought leave to appeal against that

sentence.[2] He contended that both the total effective sentence, and the non-parole period, were manifestly excessive.

[2]An application for an extension of time to file a notice of application for leave to appeal accompanied the above notice.…

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 Lockyer (a pseudonym) v The Queen

Details

AGLC: Lockyer (a pseudonym) v The Queen [2020] VSCA 321
Case: [2020] VSCA 321
Decision Date: 9 December 2020

CaseChat Overview and Summary

The appeal before the Court concerns the sentence imposed upon Lockyer, who had been convicted of various serious offences, including rape, common assault, and persistent contravention of a family violence intervention order, in addition to committing an indictable offence while on bail. The Court of Appeal was tasked with determining whether the original sentence, a total effective term of 12 years and 6 months’ imprisonment with a non-parole period of 10 years, was manifestly excessive. The applicant, who is an Indigenous Australian with a disadvantaged upbringing and no prior relevant convictions, argued that the sentence was disproportionate given his reasonable prospects of rehabilitation.

The primary legal issue before the Court was whether the original sentence was manifestly excessive, taking into account the nature and circumstances of the offences, the individual sentences imposed, and the non-parole period. The Court considered the principles of sentencing, including the need for punishment, deterrence, rehabilitation, and proportionality, as well as the specific circumstances of the applicant. The Court also examined the principles of sentencing Indigenous Australians, as outlined in relevant case law, and the need to consider the applicant’s background and prospects for rehabilitation.

The Court of Appeal found that the total effective term of 12 years and 6 months’ imprisonment, as well as the non-parole period of 10 years, were manifestly excessive. The Court acknowledged the seriousness of the offences but noted the applicant’s disadvantaged background, lack of prior convictions, and reasonable prospects of rehabilitation. The Court determined that a more proportionate sentence would be a total effective term of 9 years’ imprisonment with a non-parole period of 6 years. The appeal was therefore allowed, and the applicant was resentenced accordingly.

The Court did not make any specific orders beyond the resentencing. The applicant’s sentence was reduced to a total effective term of 9 years’ imprisonment with a non-parole period of 6 years. The Court’s decision reflects a careful consideration of the principles of sentencing and the unique circumstances of the applicant.

Orders