Luke Durham v The Queen - [2019] VSCA 176

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0268

LUKE DURHAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2019
DATE OF JUDGMENT:	14 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 176
JUDGMENT APPEALED FROM:	DPP v Durham [2016] VCC 1974

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CRIMINAL LAW – Appeal – Sentence – Rape – Sexual assault – Intellectual disability –Sentence following revocation of Residential Treatment Order – Whether time spent in secure residential facility considered in sentencing – Whether sentence manifestly excessive – Appeal dismissed – Sentencing Act 1991 ss 6D, 6E, 82A(6) and 82AA – Akoka v The Queen [2017] VSCA 214; Clarkson v The Queen (2011) 32 VR 361, applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms D Piekusis QC	Office of Public Prosecutions

EMERTON JA
LASRY AJA:

Introduction

On 6 September 2016, the applicant pleaded guilty in the County Court at Melbourne to a charge of rape and a charge of sexual assault.

On 7 November 2016, the County Court imposed a five-year Residential Treatment Order pursuant to s 82AA of the Sentencing Act 1991 (‘Sentencing Act’). The Residential Treatment Order was cancelled on the application of the Secretary of the Department of Health and Human Services on 15 August 2018, and the applicant was remanded in custody.

On 19 November 2018, the applicant was resentenced by the same judge in the County Court as follows:

Charge Offence Max Penalty Sentence Cumulation

1 Rape
[Crimes Act 1958 s 38(1)] 25 years 3 years and 6 months Base

2 Sexual assault
[Crimes Act 1958 s 40(1)] 10 years 1 year 6 months

Total Effective Sentence: 4 years

Non-Parole Period: 2 years

Pre-sentence detention declared: 318 days

6AAA Statement: 7 years with a non-parole period of 5 years

Ancillary orders: Sentenced as a Serious Sexual Offender. Forensic sample order. Reporting under the Sex Offenders Registration Act 2004 for life.

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Rape [Crimes Act 1958 s 38(1)]	25 years	3 years and 6 months	Base
2	Sexual assault [Crimes Act 1958 s 40(1)]	10 years	1 year	6 months
Total Effective Sentence:	4 years
Non-Parole Period:	2 years
Pre-sentence detention declared:	318 days
6AAA Statement:	7 years with a non-parole period of 5 years
Ancillary orders:	Sentenced as a Serious Sexual Offender. Forensic sample order. Reporting under the Sex Offenders Registration Act 2004 for life.

The applicant now seeks leave to appeal the sentence on the single ground that the total effective sentence, individual sentences and the non-parole period are manifestly excessive in the light of the findings made in the reasons for sentence in relation to Charge 1 and the circumstances of the offending in Charge 2.

Circumstances of offending

At the time of the offences, the applicant and the victim lived in a supported residential unit, as both men have intellectual disabilities.

In the evening of 27 March 2016, the applicant went outside to smoke a cigarette, wearing only his dressing gown. He took lubricant with him, and he masturbated. When he came back into the house, he went into the victim’s bedroom. The victim was naked in bed and, according to the applicant, he appeared to be half asleep. The applicant began rubbing the victim’s foot and got into bed with him. He then placed the victim’s penis in his mouth for a couple of…

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 Luke Durham v The Queen

Details

AGLC: Luke Durham v The Queen [2019] VSCA 176
Case: [2019] VSCA 176
Decision Date: 14 August 2019

CaseChat Overview and Summary

Luke Durham has appealed against his sentence following a conviction for sexual assault, arguing that the trial judge erred in failing to consider the time he spent in a secure residential facility as part of his sentence following the revocation of a Residential Treatment Order. The appeal was heard by the Supreme Court of Victoria. The central legal issues were whether the trial judge erred in not considering the time spent in the secure facility and whether the sentence imposed was manifestly excessive.

In addressing the first issue, the court examined the applicable provisions of the Sentencing Act 1991, specifically sections 6D, 6E, 82A(6) and 82AA. The court found that the trial judge did consider the time spent in the secure facility in arriving at the sentence. The court also considered the principle from Akoka v The Queen that the time spent in custody awaiting sentencing is to be deducted from the overall sentence. However, the court found that the trial judge had adequately taken this into account. Regarding the second issue, the court found that the sentence was not manifestly excessive, particularly given the gravity of the offences and the need for denunciation and deterrence. The court referred to Clarkson v The Queen in affirming that the appellate court should only interfere with a sentence if it is manifestly excessive.

In conclusion, the court dismissed the appeal, affirming that the trial judge had not erred in sentencing. The court held that the sentence imposed was appropriate and not manifestly excessive, taking into account all relevant factors, including the time spent in the secure facility.

Orders