R v GLH - [2008] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 148 of 2007

THE QUEEN
	v
GLH

---

JUDGES:	WARREN CJ and ASHLEY JA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 2008
DATE OF JUDGMENT:	29 May 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 88

---

CRIMINAL LAW — Sentence - Appeal against total effective sentence of seven years’ imprisonment with non-parole period of four years for six counts of committing an indecent act with a child under 16 years and one count of incest — Whether appellant was punished for conduct other than that for which he was entitled to be sentenced on two representative counts — Whether sentencing judge intended to impose a disproportionate sentence — Sentencing Act 1991 (Vic) s 6D(b), s 6E — Appeal allowed — Appellant re-sentenced to total effective sentence of four years’ imprisonment with non-parole period of two years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Victoria Legal Aid

WARREN CJ:

For the reasons explained by Lasry AJA, I would grant leave to appeal, allow the appeal, and re-sentence the applicant as his Honour proposes.

ASHLEY JA:

I agree with Lasry AJA, for the reasons which his Honour gives, that the application for leave to appeal should be granted, that the appeal should be allowed, and that the appellant should be re-sentenced as his Honour proposes.

LASRY AJA:

This is an application for leave to appeal against sentence by GLH (‘the applicant’). The applicant was presented at the County Court at Morwell on 22 January 2007 and pleaded guilty to six counts of committing an indecent act with a child and one count of incest.[1] Those counts were based on events which occurred between May 2004 and December 2005.
[1]The maximum penalty for committing an indecent act with a child under 16 years is 10 years’ imprisonment – Crimes Act (1958) s 47; the maximum penalty for the offence of incest is 25 years’ imprisonment– Crimes Act (1958) s 44.

After hearing a plea in mitigation on behalf of the applicant the sentencing judge imposed the following sentences:

On Count 1 –

indecent act with a child under 16 years –

three years’ imprisonment (base sentence)

On Count 2 –

indecent act with a child under 16 years –

three years’ imprisonment (one year of which was to be imposed cumulatively on all other sentences imposed)

On Count 3 –

indecent act with a child under 16 years –

one year imprisonment (wholly cumulative on the sentences imposed)

On Count 4 –

incest –

six months’ imprisonment (wholly cumulative on the sentences imposed)

On Count 5 –

indecent act with a child under 16 years –

six months’ imprisonment (wholly cumulative on the sentences imposed)

On Count 6 –

indecent act with a child under 16 years –

six months’ imprisonment (wholly cumulative on the sentences imposed)

On Count 7 –

indecent act…

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 R v GLH

Details

AGLC: R v GLH [2008] VSCA 88
Case: [2008] VSCA 88
Decision Date: 29 May 2008

CaseChat Overview and Summary

The appellant, GLH, was convicted on six counts of committing an indecent act with a child under 16 years and one count of incest. GLH appealed against the total effective sentence of seven years’ imprisonment with a non-parole period of four years, arguing that he was punished for conduct other than that for which he was entitled to be sentenced on two representative counts and that the sentence was disproportionate. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The court had to determine whether the sentencing judge imposed a sentence that was disproportionate to the offending and whether the appellant was punished for conduct other than that for which he was entitled to be sentenced on two representative counts. The court had to consider the relevant principles of sentencing and whether the sentence was in accordance with the purposes of the Sentencing Act 1991 (Vic).

The court held that the appellant was punished for conduct other than that for which he was entitled to be sentenced on two representative counts. The court found that the sentencing judge intended to impose a disproportionate sentence. The court noted that the offending was of a serious nature and involved the abuse of a position of trust. However, the court considered that the sentence was excessive and disproportionate to the offending. The court allowed the appeal and re-sentenced the appellant to a total effective sentence of four years’ imprisonment with a non-parole period of two years.

The court ordered that the appellant be re-sentenced to a total effective sentence of four years’ imprisonment with a non-parole period of two years. The court noted that the re-sentence took into account the seriousness of the offending and the need to protect the community. The court also noted that the re-sentence was proportionate to the offending and in accordance with the purposes of the Sentencing Act 1991 (Vic).

Orders