SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0095
| LACHLAN PITT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]These reasons have been anonymised to avoid the risk of identifying the victim of sexual offending.
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 March 2020 |
| DATE OF JUDGMENT: | 27 March 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 73 |
| SENTENCE APPEALED FROM: | [2019] VCC 487 (Judge McInerney) |
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CRIMINAL LAW — Appeal — Sentence — Applicant sentenced for sexual offending against his daughter between 1988 and 1992 — Applicant undergoing sentence for murder committed in 1997 — Totality — Delay — Lost opportunity for sentences to be served concurrently — Judge’s intention that sentence for sexual offending be served wholly concurrently with sentence for murder — Orders ineffectual to achieve judge’s stated intention — Leave to appeal granted and appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C Foot | Patrick W Dwyer |
| For the Respondent | Ms D Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
Plea, sentence and grounds of appeal
On 20 December 2018, the applicant pleaded guilty in the County Court to one charge of indecent assault[2] (charge 1), four charges of gross indecency[3] (charges 2, 3, 4 and 5) and one charge of incest[4] (charge 6). Following a plea on 5 March 2019, the applicant was sentenced on 9 April 2019 to nine years’ imprisonment, with a non-parole period of seven years, in accordance with the following table:
[2]Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1980), s 44(1). The maximum penalty is five years’ imprisonment.
[3]Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1980), s 50(1). The maximum penalty is two years’ imprisonment.
[4]Crimes Act1958 (as amended by the Crimes (Rape) Act 1991), s 44(1). The maximum penalty is 20 years’ imprisonment.
Charge Offence Sentence Cumulation 1 Indecent assault 2 years 9 months 2 Gross indecency 9 months 3 months 3 Gross indecency 12 months 4 months 4 Gross indecency 12 months 4 months 5 Gross indecency 12 months 4 months 6 Incest 7 years Base Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 7 years’ imprisonment Pre-Sentence Detention: Nil Section 6AAA Statement: 12 years’ imprisonment with a non-parole period of 9 years’ Ancillary orders · Forensic sample order
· Sentenced as a serious sexual offender on charges 3, 4, 5 and 6
· Sex offender registration (reporting for life)
The applicant seeks leave to appeal against the sentence on four grounds as follows:
1 The Learned Sentencing Judge failed to take into account the lost opportunity for the applicant to serve the sentence concurrently with the sentence imposed in April 1998.
2 The Learned Sentencing Judge incorrectly understood that the applicant had a prior conviction for murder.
3 The Learned Sentencing Judge was mistaken about the applicant’s earliest release date and the date he was to have been released…
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- AGLC
- Lachlan Pitt (a pseudonym)[1] v The Queen [2020] VSCA 73
- Case
- [2020] VSCA 73
- Decision Date
CaseChat Overview and Summary
The central legal issue revolved around whether the delay in sentencing for the sexual offences warranted any adjustment to the sentence. The court had to determine whether the delay had an impact on the overall sentence and whether it was within the court's discretion to modify the sentence to reflect the judge's intention for concurrent sentencing. The court considered the principles of totality and the impact of delay on the sentencing process. It also examined the orders made by the judge and their effectiveness in achieving the intended outcome.
The court found that the delay in sentencing did indeed impact the overall sentence and that the orders made by the judge were ineffectual in achieving the intended outcome of concurrent sentencing. The court held that the principle of totality required consideration of the delay in sentencing and its effect on the overall punishment. The court also recognised the importance of the judge's intention for concurrent sentencing and found that the orders made were not sufficient to achieve this. As a result, the appeal was allowed, and the matter was remitted for reconsideration of the sentence in light of the court's findings.
The final orders included remitting the matter to the lower court for reconsideration of the sentence for the sexual offences, taking into account the principle of totality and the impact of the delay on the sentencing process. The court directed the lower court to ensure that the sentence for the sexual offences would be served wholly concurrently with the sentence for the murder, as per the judge's original intention. This decision highlights the importance of considering the impact of delay on sentencing and the need for effective orders to achieve the intended outcome.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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