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Pitt (a Pseudonym v The Queen

Pitt (a Pseudonym v The Queen

Case [2020] VSCA 73 27 March 2020

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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…

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 Pitt (a Pseudonym v The Queen

Details

AGLC: Lachlan Pitt (a pseudonym)[1] v The Queen [2020] VSCA 73
Case: [2020] VSCA 73
Decision Date: 27 March 2020

CaseChat Overview and Summary

The case of Pitt, a pseudonym v The Queen involved the appellant, who was sentenced for sexual offending against his daughter that occurred between 1988 and 1992. He was also undergoing a sentence for murder committed in 1997. The court was required to address the issue of the appropriate sentencing framework, specifically focusing on the concept of totality and the delay in the sentencing process that prevented the sentences from being served concurrently. The appellant argued that the delay in sentencing for the sexual offences resulted in lost opportunities for concurrent sentencing, which was the judge's expressed intention.

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