[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES:
MAXWELL P, PRIEST, KAYE, T FORREST and EMERTON JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
6 November 2019
DATE OF JUDGMENT:
30 March 2020
MEDIUM NEUTRAL CITATION:
[2020] VSCA 75
JUDGMENT APPEALED FROM:
DPP v [Lugo] (Unreported, County Court of Victoria, Judge Gamble, 22 February 2019)
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CRIMINAL LAW – Appeal – Sentence – Standard sentence scheme – Indecent act with child under 16, sexual assault of child under 16 (two charges) – Victim was applicant’s natural daughter – Sentence on first sexual assault 2 years and 6 months’ imprisonment – Sentence on second sexual assault 4 years and 4 months’ imprisonment – Standard sentence of 4 years applied only to second assault – Whether judge erred in assessment of offence seriousness – Whether standard sentence given too much weight – Whether sentences manifestly excessive – Very serious offending – High moral culpability – Serious victim impact – No error – Sentences within range – Leave to appeal granted but appeal dismissed – Brown v The Queen [2019] VSCA 286 applied – Sentencing Act 1991 ss 5A, 5B.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr R F Edney with Ms N Vermezovic
Markotich Lawyers
For the Respondent
Mr C B Boyce QC with Ms J Warren
Mr J Cain, Solicitor for Public Prosecutions
MAXWELL P KAYE JA T FORREST JA EMERTON JA:
Summary
The applicant pleaded guilty to three charges of sexual offending against his natural daughter. At the time of the first charged act, the applicant was 47 and his daughter was 9 or 10; at the time of the third charged act, he was 48 and she was 11.
The offences (all of which carry the same maximum penalty of 10 years’ imprisonment) and the sentences were as follows:
(a) indecent act with a child under 16:[2] 2 years’ imprisonment;
(b) sexual assault of a child under 16:[3] 2 years and 6 months’ imprisonment; and
(c) sexual assault of a child under 16:[4] 4 years and 4 months’ imprisonment.
With cumulation, the total effective sentence was 5 years and 10 months’ imprisonment. A non-parole period of 3 years and 11 months was fixed.
[3]Ibid s 49D(1).
[4]Ibid.
The offence the subject of charge 3 was a ‘standard sentence offence’. That is, it was an offence for which a standard sentence (in this case, 4 years’ imprisonment) was prescribed, in accordance with the standard sentencing scheme established in 2017.[5] For that reason, this application was heard together with two other appeals concerning sentences imposed for standard sentence offences.[6]
[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.
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Lugo v the Queen [2020] VSCA 75
Case
[2020] VSCA 75
Decision Date
CaseChat Overview and Summary
In the case of Lugo v the Queen, the appellant, Mr. Lugo, appealed against his sentence for two counts of sexual assault of his natural daughter under the age of 16. The case was heard in the Victorian Court of Appeal. Mr. Lugo was initially sentenced to 2 years and 6 months' imprisonment for the first count and 4 years and 4 months' imprisonment for the second count. The appeal centred on whether the trial judge erred in the assessment of the seriousness of the offences, whether the standard sentence for the second assault was given too much weight, and whether the sentences were manifestly excessive.
The court examined whether the trial judge erred in assessing the seriousness of the offences. The judge had considered the high moral culpability and the serious impact on the victim, concluding that the standard sentence of 4 years was appropriate for the second assault. The court found that the trial judge's assessment was correct and that the sentences were within the range of what could be considered appropriate for such serious offences. The court also reviewed whether the standard sentence was given too much weight but found no error in the judge's approach.
The court held that there was no error in the trial judge's sentencing process and that the sentences were not manifestly excessive. The very serious nature of the offending, the high moral culpability, and the significant impact on the victim supported the sentences imposed. The appeal was dismissed, and leave to appeal was granted only to address the issues raised. The decision was based on the principles set out in Brown v The Queen [2019] VSCA 286 and relevant sections of the Sentencing Act 1991.