LS v CDirector of Public Prosecutions - [2020] VSC 484

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0080

LS (a pseudonym)[1]	Appellant
v
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

[1]To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

---

JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June 2020
DATE OF SENTENCE:	10 August 2020
CASE MAY BE CITED AS:	LS v CDPP
MEDIUM NEUTRAL CITATION:	[2020] VSC 484

---

CRIMINAL LAW — Appeal from decisions of President of the Children’s Court — Appeal against conviction on 2 charges and sentence on all charges — State and federal sexual offences committed against appellant’s baby daughter — Whether general deterrence relevant to sentencing a child for federal offences — Appellant convicted and sentenced to 12 months’ detention in a Youth Justice Centre — Crimes Act 1958 (Vic) ss 49A, 49D, 49F — Criminal Code (Cth) s 474.20(1)(a)(ii), s 474.19(1)(a)(ii) — Crimes Act 1914 (Cth) ss 16A, 20C — Children, Youth and Families Act 2005 (Vic) s 362 — CNK v R (2011) 32 VR 641 — DPP v Hutchinson (a pseudonym) [2018] VSCA 153.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Waters	Claudia Grimberg Lawyers
For the Respondent	Mr K Armstrong	Commonwealth Solicitor for Public Prosecutions

HIS HONOUR:

LS, you appealed from the Children’s Court against conviction and sentence in respect of two charges and against sentence in respect of 14 charges.

On 11 May 2020, I found you guilty of the two sexual penetration charges that you were contesting. In respect of all charges, I deferred sentence and released you on bail on strict conditions.

Unfortunately, you breached your bail and, on 22 June 2020, I remanded you in custody.

Today, I will sentence you in respect of all 16 charges, namely:

(a) two charges of sexual activity in the presence of a child under 16 years;[2]
[2]Contrary to s 49F of the Crimes Act 1958 (Vic) (charges 6 and 19). The maximum penalty for that offence is 10 years’ imprisonment.

(b) two charges of sexual assault of a child under the age of 16 years;[3]
[3]Contrary to s 49D of the Crimes Act 1958 (Vic) (charges 1 and 15). The maximum penalty for that offence is 10 years’ imprisonment.

(c) two charges of sexual penetration of a child under the age of 12 years;[4]

(d) five charges of producing child pornography;[5] and

(e) five charges of transmitting child pornography using a carriage service.[6]

[4]Contrary to s 49A of the Crimes Act 1958 (Vic) (charges 20 and 21). The maximum penalty for that offence is 25 years’ imprisonment.

[5]Contrary to s 474.20(1)(a)(ii) of the Criminal Code 1995 (Cth) (charges 3, 7, 8, 9 and 10). The maximum penalty for that offence is 15 years’ imprisonment.

[6]Contrary to s 474.19(1)(a)(ii) of the Criminal Code 1995 (Cth) (charges 2, 11, 12, 13 and 14). The maximum penalty for that…

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 LS v CDirector of Public Prosecutions

Details

AGLC: LS v CDirector of Public Prosecutions [2020] VSC 484
Case: [2020] VSC 484
Decision Date: 10 August 2020

CaseChat Overview and Summary

The appellant, LS, appealed against a conviction and sentence imposed by the President of the Children’s Court for two charges relating to sexual offences against their baby daughter. The case was heard in the Supreme Court of Victoria, which had appellate jurisdiction over decisions of the Children’s Court. The charges under the Crimes Act 1958 (Vic) were aggravated indecent assault and causing a child to engage in a sexual act, while the charges under the Criminal Code (Cth) were sexual intercourse with a child under 16 and sexual penetration with a child under 16. The appeal was based on the contention that general deterrence was not a relevant consideration in sentencing a child and that the sentence imposed was excessive.

The primary legal issue before the court was whether general deterrence was an appropriate consideration when sentencing a child for federal sexual offences. The appellant argued that general deterrence was not relevant because it did not take into account the age and developmental stage of the offender. The appellant further contended that the sentence imposed was excessive and did not appropriately balance the need for general deterrence against the rehabilitative needs of a child. The Director of Public Prosecutions argued that general deterrence was a relevant consideration in sentencing and that the sentence imposed was appropriate given the gravity of the offences.

The court held that while general deterrence was a relevant consideration in sentencing, it was not the only factor to be taken into account. The court emphasised the importance of proportionality and the need to consider the best interests of the child, including their potential for rehabilitation. The court noted that the sentencing principles applicable to children were different from those applicable to adults, and that the primary objective should be rehabilitation rather than punishment. The court concluded that the sentence imposed was excessive and did not appropriately balance the relevant considerations. The appeal was allowed, and the matter was remitted to the Children’s Court for resentencing.

The final orders of the court were that the appeal against conviction was dismissed, but the appeal against sentence was allowed. The matter was remitted to the Children’s Court for resentencing, with directions to appropriately balance the considerations of general deterrence, specific deterrence, denunciation, and the rehabilitative needs of the child. The court emphasised the need for a sentence that was proportionate and appropriate to the age and circumstances of the appellant.

Orders