Lucas v The Queen

[2003] WASCA 231

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   LUCAS -v- THE QUEEN [2003] WASCA 231

CORAM:   MURRAY J

STEYTLER J
WHEELER J

HEARD:   8 SEPTEMBER 2003

DELIVERED          :   8 SEPTEMBER 2003

PUBLISHED           :  3 OCTOBER 2003

FILE NO/S:   CCA 41 of 2003

BETWEEN:   ERNEST LAURENCE THOMAS LUCAS

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentencing - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr D P A Moen

Respondent:     Mr J Mactaggart

Solicitors:

Applicant:     David Manera

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Wagenaar v The Queen [2000] WASCA 325

Case(s) also cited:

Bell v The Queen [2001] WASCA 40

Osenkowski (1982) 30 SASR 212

R v Dickson, unreported; SCt of WA; Library No 990203; 23 April 1999

R v Liddington (1997) 18 WAR 394

R v GP (1997) 18 WAR 196

1. MURRAY J:  I agree with the reasons now published by Wheeler J, without addition. 

2. STEYTLER J:  I have had the advantage of reading in draft the reasons for decision of Wheeler J.  I agree with them.  There is nothing I wish to add.

3. WHEELER J:  On 8 September 2003 this Court dismissed the applicant's application for leave to appeal against sentence.  These are my reasons for joining in the order which the Court then made.

4. The applicant appeared in the District Court on 7 March 2003 and was convicted on his own plea of guilty of four counts of unlawful and indecent dealing, two of attempted unlawful carnal knowledge, and three of unlawful and indecent assault.  He received an effective sentence of 5 years' imprisonment with eligibility for parole.

5. The offences in question took place between 1962 and 1967.  The offending commenced in 1962 when the complainant was sitting on the floor in front of the applicant in the family home.  He was her stepfather.  She was approximately 11 years of age.  He put his foot underneath the complainant's shorts and underwear and rubbed his bare toes against the complainant's vagina.  His offending against her progressed to digital penetration and to occasions on which he rubbed his penis against her vagina.  There were two counts, they being the attempted unlawful carnal knowledge, which related to his attempting to insert his penis into her vagina and ejaculating whilst doing so.  The complainant was 16 years of age at the time of the last offence.

6. It appears that after the commission of the last offence, the complainant felt able to tell the applicant to cease that behaviour and he did so.  Some time later – the applicant's submissions assert that it was "several years" later, the complainant told her mother what had happened.  Her mother then approached the applicant and told him that if such behaviour continued she would "see him in jail".  It appears to have been accepted that once the complainant told the applicant to stop, there were no further offences of that kind committed by him.

7. There were a number of mitigating factors.  Not only had the applicant apparently ceased offending once he was told to stop, but he was otherwise of good character.  A number of favourable references were tendered by his counsel.  He had entered pleas of guilty in relation to each count.  Although the pleas were not strictly "fast track", his Honour the

learned sentencing Judge accepted that there had been some negotiations with the DPP over the indictment, and his Honour accepted they were relevantly early pleas, for which credit should be given.

1. By the time of sentencing, the applicant was 81 years of age.  He had, as is not surprising in a man of his age, some health problems, relating to his heart, his blood pressure and arthritis.  He expressed himself as being remorseful, although he appeared, to a degree, to lack insight into his behaviour at that time.  There was no suggestion that he required treatment or that there was a risk of further offending.  As is unhappily common in such cases, his stepdaughter's understandable wish to bring the offences to the attention of the relevant authorities had caused stress and tension within the family.  It was apparent that not only the applicant, but also other members of his family, had suffered social stigma and negative reactions as a result of publicity surrounding his offending.

2. His Honour summarised, and had regard to, all of the relevant mitigatory factors.  It is not suggested that he failed to have regard to, or to give appropriate weight to, any relevant factor.  Rather, his counsel submitted at the hearing of this application that the application rested on the totality principle and upon the failure to suspend the term of imprisonment, given the peculiar circumstances of the case.  Those peculiar circumstances boiled down to the advanced age of the applicant and the very lengthy period which had elapsed between his offending and his sentence.

3. However, counsel for the applicant also conceded, and quite properly, that the sentence he in fact received was a very lenient one having regard to the nature and circumstances of the offences.  Counsel did not disagree with the proposition, put from the bench, that had the offences occurred recently, or had the applicant been sentenced at a time close to the offending, he might well have expected a term of imprisonment approximately double that which was in fact imposed.

4. There is no doubt that at the applicant's advanced age the prospect of any lengthy term of imprisonment must weigh very heavily on him.  So far as his health is concerned, there is no suggestion that he suffers from any condition which is unable to be managed adequately whilst he is imprisoned, or that his imprisonment to date has affected him in any unusual way.  So far as the length of time since the commission of the offences is concerned, it is true that it is a very lengthy period.  This is not one of those cases in which there was evidence of very deep remorse and understanding of the position of the complainant, or of an unusually blameless life and contribution to the community in the period since the offending (cfWagenaar v The Queen [2000] WASCA 325 at [56] – [63]). However, the applicant's long period of living a blameless and constructive life since the time of these offences is significant, and was understood by his Honour to be significant.

5. Even accepting, as I do, that the features to which I have referred were both mitigatory and unusual, I do not think that it can be suggested that the sentences in fact imposed demonstrate that his Honour's sentencing discretion miscarried.  In my view, those factors were adequately reflected in the very significant discount which the applicant, through his counsel, accepted he had received.