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)

---

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.

---

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…

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 LQ v The Queen

Details

AGLC: LQ v The Queen [2011] VSCA 135
Case: [2011] VSCA 135
Decision Date: 13 May 2011

CaseChat Overview and Summary

The appellant, LQ, sought leave to appeal against his conviction and sentence for multiple sexual offences against a child under the age of 16. The appeal was heard in the High Court of Australia, which granted leave to amend the grounds of appeal to include an additional ground concerning the safety and satisfaction of the verdict on count 8 of sexual penetration. The appellant also sought leave to appeal against the severity of his sentence, which amounted to nine years' imprisonment with a non-parole period of six years and six months.

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