R v CLP

Case [2008] VSCA 113 19 June 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 73 of 2007

R
	v
CLP

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JUDGES:	NEAVE and KELLAM JJA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2008
DATE OF JUDGMENT:	19 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 113

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CRIMINAL LAW – Appeal against sentence – Father subjected four of his teenage daughters to regular sexual abuse between 1975 and 1984 – Voluntary confession to police 22 years later when appellant was 70 – Pleaded guilty to 14 counts including incest and indecent assault – Conviction on three of four incest counts solely based on admissions – Sentenced to total effective sentence of seven years and two months’ imprisonment with non-parole period of three years and six months – Whether sentence manifestly excessive when regard had to admissions, attitude of victims to imprisonment of appellant, guilty plea, delay, remorse, age and ill health – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gamble	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Victoria Legal Aid

NEAVE JA.:

Background

The appellant, CLP, pleaded guilty to sexual offences committed against his four teenage daughters, between 23 and 33 years ago. The 14 counts to which he pleaded guilty comprised four counts of incest, seven counts of indecent assault of a girl under 16, two counts of indecent assault of a woman and one count of attempted indecent assault. The appellant was sentenced by a County Court judge to a total effective sentence of imprisonment of seven years and two months’ imprisonment, with a non-parole period of three years and six months. Details of the sentences imposed on the individual counts are set out below. This is an appeal against these sentences, the total effective sentence and the non-parole period.

The facts

The offences occurred between 20 May 1975 and 3 October 1984. Their circumstances were as follows.

Counts 1 - 4 and count 9 relate to sexual acts affecting the appellant’s oldest daughter, V. Count 2, the most serious offence, is a representative count of incest, which occurred when V was 13 years old. On that occasion the appellant removed V’s clothing and began having sexual intercourse with her, in his bedroom in the family home. She pushed him off and ran out of the room.

Counts 1, 3, 4 and 9 are all counts of indecent assault of V. Count 1 is a rolled up count covering events which occurred at the Oakleigh drive-in when V was 13 years old. The appellant fondled V’s breast and put his finger in her vagina, beneath a blanket. Counts 3 and 4 occurred when V was 15 years old. Count 3 related to an occasion when the appellant lay on top of V and simulated intercourse with her. Count 4 involved fondling her breasts. Count 9 involved fondling V’s breasts when she was 18 years old.

Counts 5 - 7 and counts 10, 11 and 13 relate to the…

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.

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Details

AGLC: R v CLP [2008] VSCA 113
Case: [2008] VSCA 113
Decision Date: 19 June 2008

CaseChat Overview and Summary

The appellant in this case was convicted of multiple counts of incest and indecent assault against four of his teenage daughters over a period from 1975 to 1984. Twenty-two years after the events, the appellant confessed to the police and subsequently pleaded guilty to 14 counts. The conviction on three out of four incest counts was based solely on the appellant’s admissions. The appellant was sentenced to a total effective term of imprisonment of seven years and two months, with a non-parole period of three years and six months. The appellant appealed the sentence, arguing that it was manifestly excessive.

The primary legal issue for the court was whether the sentence was manifestly excessive, taking into account various factors. These included the appellant's admissions, the attitude of the victims towards his imprisonment, the fact that he entered a guilty plea, the delay in confessing, the appellant's expression of remorse, his age, and his ill health. The court needed to determine if the sentence imposed was appropriate in all the circumstances, considering both the nature of the crimes and the mitigating factors presented.

The court considered the gravity of the crimes, noting the long-term and profound impact on the victims, which included significant emotional and psychological harm. The court also took into account the appellant's admissions and guilty plea, which resulted in a reduced sentence compared to what might have been imposed at trial. The delay in confessing was noted, but the court emphasised that this did not excuse the nature and extent of the crimes. The appellant’s age and health were considered as mitigating factors, but the court found that they did not sufficiently outweigh the severity of the offences. Ultimately, the court concluded that the sentence was not manifestly excessive and dismissed the appeal.

No further orders were made by the court.

Orders