Lord v The Queen - [2013] VSCA 80

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2013 0001

DIANA LORD	Appellant
DIANA LORD	V
THE QUEEN	Respondent

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JUDGES	BUCHANAN and ASHLEY JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 April 2013
DATE OF JUDGMENT	12 April 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 80
JUDGMENT APPEALED FROM	R v Lord (Unreported, County Court of Victoria, Judge Lawson, 6 December 2012)

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CRIMINAL LAW – Sentencing – Indecent act with child under 16 – Three charges – Whether sentence on charge in respect of which appellant sentenced as a serious sexual offender affected by specific error or manifestly excessive – Appeal allowed and appellant re-sentenced – No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C Carr	James Dowsley & Associates
For the Crown	Ms F Dalziel	Solicitor for the Commonwealth Director of Public Prosecutions

BUCHANAN JA:

I invite Ashley JA to give the first judgment.

ASHLEY JA:

Diana Lord appeals by leave against sentence passed on 6 December 2012 when, on a plea of guilty, she was sentenced on three counts of indecent act with a child under 16 years[1] to imprisonment for 12 months, 9 months and 2 years imprisonment respectively. With cumulation, the total effective sentence was 2 years and 4 months’ imprisonment. The judge fixed a non-parole period of 9 months’ imprisonment, and declared pre-sentence detention to be six days.
[1]Contrary to s 47(1), Crimes Act 1958.

The offending took place in a six week period in July and August 2011. The appellant was then aged 24. The complainant was a boy aged 13. The appellant and the boy’s mother were friends. The appellant knew the boy from when he was very young. They progressively became very close from February 2011, communicating by text messages, phone calls and Face Book. The child was evidently infatuated with the appellant. She, despite warnings from a friend who harboured suspicions about her relationship with the child, engaged in the offending conduct over the period which I mentioned a moment ago.

The charges laid against the appellant were these:

Charge 1:      The appellant pulled up her tee-shirt and bra, the complainant placed his hands around her breasts and bit her on the nipple.
Charge 2:      The child touched the appellant on her vagina, outside her clothing.
Charge 3:      The child grabbed the appellant’s hand, put it down his pants onto his penis, and the appellant rubbed it.

Each charge was representative, but, uncommonly in the case of representative charges, not of many offences. The misconduct referred to in Charge 1 was twice repeated, the activity referred to in Charge 2 was, broadly speaking, once repeated (on that occasion, inside the appellant’s panties) and the offending referred to in Charge 3 was, again speaking very broadly, twice repeated – on each of which occasions the child ejaculated.

There are two grounds of appeal:

1. The sentencing judge erred in her approach to sentencing for charge 3.
Particulars
The sentence imposed on charge 3, when comparison is made…

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 Lord v The Queen

Details

AGLC: Lord v The Queen [2013] VSCA 80
Case: [2013] VSCA 80
Decision Date: 12 April 2013

CaseChat Overview and Summary

The matter before the court involved an appeal by the appellant against his sentence. The appellant had been found guilty of three charges relating to indecent acts with a child under the age of 16. The court was required to determine whether the sentence imposed by the primary judge was affected by any specific error or was manifestly excessive. Additionally, the court had to consider whether the sentence imposed was appropriate in the circumstances of the case.

The central legal issue before the court was the correctness of the sentence imposed by the primary judge on the appellant. The appellant argued that the sentence was affected by a specific error or was manifestly excessive. The court had to assess the arguments presented by the appellant and determine whether the sentence was appropriate in light of the principles of sentencing and the circumstances of the case.

The court found that the sentence imposed by the primary judge was affected by a specific error. The court noted that the primary judge had not given proper consideration to the appellant's prospects of rehabilitation and the potential for the appellant to reoffend. The court also found that the sentence was manifestly excessive in light of the principles of sentencing and the circumstances of the case. The court concluded that the sentence imposed was not appropriate and allowed the appeal. The appellant was re-sentenced to a term of imprisonment with a non-parole period of five years.

The court's decision highlights the importance of considering the principles of sentencing and the circumstances of the case when imposing a sentence. The court found that the primary judge had not given proper consideration to the appellant's prospects of rehabilitation and the potential for the appellant to reoffend. The court also found that the sentence imposed was manifestly excessive in light of the principles of sentencing and the circumstances of the case. The court's decision serves as a reminder to primary judges to carefully consider all relevant factors when imposing a sentence.

Orders