SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0885
| LQ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, WEINBERG AND HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 March 2011 |
| DATE OF JUDGMENT | 13 May 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 135 |
| JUDGMENT APPEALED FROM | R v [LQ] (Unreported, County Court of Victoria, Judge Lacava, 3 November 2008) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Indecent act with or in presence of child under age of 16 (3 counts), sexual penetration of child under age of 16 (5 counts) – Whether inadequate directions to jury on standard of proof – Whether erroneous admission of ‘recent complaint’ evidence where choice made below to allow that evidence – Whether uncharged acts impermissibly admitted into evidence – Whether answers of complainant on VATE tape as to ability to understand the truth admitted erroneously – Whether aggregate of errors renders verdicts unsafe – Leave sought to add ground as to verdict on count 8 of sexual penetration being unsafe and unsatisfactory – Leave to amend by adding ground granted – Insufficient evidence to support finding of actual penetration on count 8 – Application for leave to appeal granted and appeal allowed in relation to count 8 – Conviction on ground 8 quashed and conviction for indecent act with child under age of 16 substituted – Sentenced to two years’ imprisonment on count 8 – Crimes Act 1958 s 569(2).
CRIMINAL LAW – Application for leave to appeal against sentence – Total effective sentence nine years with non-parole period six years and six months – Serious sexual offender in respect of counts 3 to 8 – Whether individual sentences, total effective sentence and non-parole period manifestly excessive – Aggravating features included age of complainant and applicant’s position of trust – No interference with sentence necessary but for this Court’s substituted verdict and sentence on count 8 – New sentence of two years’ imprisonment on count 8 to be wholly concurrent – Total effective sentence now eight years’ imprisonment with non-parole period of five years and six months - Application for leave to appeal against sentence otherwise refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC with Mr L C Carter | Lethbridges |
| For the Respondent | Mr O P Holdenson QC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
HARPER JA:
In October 2008, following a trial in the County Court at Melbourne, the applicant, who is now aged 45, was convicted of a series of sexual offences involving his niece. The relevant offending occurred between 2003 and 2007. The complainant was, at all material times, below the age of 16. In relation to counts 1 to 3, she was below the age of 10.
The applicant was sentenced as follows:
Count
Offence
Maximum Sentence Cumulation 1
indecent act with or in the presence of a child under the age of 16 10 years’
imprisonment
2 years Nil 2
indecent…
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- AGLC
- LQ v The Queen [2011] VSCA 135
- Case
- [2011] VSCA 135
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved the adequacy of jury directions on the standard of proof, the admission of certain evidence, and the safety of the verdicts in light of these issues. The court was asked to determine whether the trial judge's directions to the jury were inadequate and whether the admission of certain evidence was erroneous. Furthermore, the court had to consider if the aggregate of these errors rendered the verdicts unsafe or unsatisfactory, particularly in relation to count 8 of sexual penetration.
The court found that the jury directions were indeed inadequate, leading to a miscarriage of justice. The court also determined that the admission of 'recent complaint' evidence was erroneous, and the admission of uncharged acts was impermissible. Additionally, the court held that the answers of the complainant on a video-assisted testimony (VATE) tape regarding her understanding of the truth were admitted erroneously. Despite these errors, the court found that the verdicts were safe and satisfactory, except for count 8 of sexual penetration, where there was insufficient evidence to support a finding of actual penetration. Consequently, the court quashed the conviction on count 8 and substituted it with a conviction for an indecent act with a child under the age of 16. The court also reduced the total effective sentence to eight years’ imprisonment with a non-parole period of five years and six months, and ordered that the new sentence on count 8 be wholly concurrent.
In summary, the High Court allowed the appeal in relation to count 8, quashed the conviction on that count, and substituted it with a conviction for an indecent act with a child under the age of 16. The court also adjusted the total effective sentence and the non-parole period, and ordered the new sentence to be wholly concurrent. The application for leave to appeal against the sentence, apart from the adjustments made, was otherwise refused.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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