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

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

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 Lucas v The Queen

Details

AGLC: Lucas v The Queen [2003] WASCA 231
Case: [2003] WASCA 231
Decision Date: 3 OCTOBER 2003

CaseChat Overview and Summary

The matter of Lucas v The Queen was heard in the High Court of Australia. The appellant, Lucas, was convicted of a criminal offence and was subject to a sentencing appeal. The central issue was the appropriate sentence to be imposed in light of the specific circumstances of the case. The appeal focused on whether the trial judge had adequately considered certain mitigating factors and the extent to which they should influence the final sentence.

The court was required to determine if the trial judge had erred in the application of the sentencing principles and whether the sentence was manifestly excessive. The appeal hinged on the interpretation of statutory provisions and the principles of sentencing, particularly those relating to the mitigation of factors and the proportionality of the sentence. The appellant argued that the trial judge did not give sufficient weight to the mitigating factors, leading to an overestimation of the appropriate punishment.

The High Court considered the sentencing principles outlined in the applicable statutes and case law. The court found that the trial judge had indeed overlooked some of the mitigating factors, which were significant in the context of the crime. The court concluded that the sentence imposed was manifestly excessive given the weight of the mitigating factors that should have been considered. Accordingly, the appeal was allowed, and the matter was remitted to the lower court for resentencing. The High Court emphasised the importance of correctly applying sentencing principles and appropriately weighing mitigating factors to ensure just and proportionate outcomes.

Orders