R v L C C - [2006] VSCA 33

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 180 of 2005

THE QUEEN
	v.
LCC

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JUDGES:	WARREN, C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2006
DATE OF JUDGMENT:	16 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 33	1^st Revision 8 March 2006

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CRIMINAL LAW – Sentence – 12 counts of sexual penetration of two children under the age of 16 – Total effective sentence of 9 years and 2 months, non-parole period of 6 years and 2 months – Relevance of consent – Exploitation of children – Offender aged 63, guilty plea, admissions being only evidence of most offences – Manifest Excess – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G.M. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T.E. Wraight	Paul Vale Criminal Law

WARREN, C.J.:

I invite Charles, J.A. to state his reasons for judgment first.

CHARLES, J.A.:

The appellant, who was born on 29 December 1938, pleaded guilty on 3 May 2005 in the County Court at Melbourne to a presentment alleging 14 counts of sexual penetration of a child under the age of 16 and two charges of committing an indecent act with a child under the age of 16. The maximum penalty for these offences was in each case 10 years' imprisonment. The appellant had no prior convictions.

Two of the counts of sexual penetration were representative counts (counts 13 and 14). On each of these counts the judge sentenced the appellant to four years' imprisonment and count 13 became the base sentence. On counts 15 and 16, both sexual penetration counts, the judge imposed three years' imprisonment. On counts 4 to 11, all sexual penetration counts, the judge imposed in each case 30 months' imprisonment; on counts 1 and 2, both sexual penetration counts, the judge imposed two years' imprisonment; and on the two counts of committing an indecent act with a child (counts 3 and 12) the judge imposed 18 months' imprisonment. Orders for cumulation brought the total effective sentence to nine years and two months' imprisonment. Her Honour set a non-parole period of six years and two months. The judge declared the appellant a serious sexual offender after conviction on count 3.

The appellant was granted leave to appeal by a judge of this Court on 4 November 2005. He now appeals on the grounds that -

1.The individual sentences, the orders for effective cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive, crushing and in breach of totality.

2. The judge erred -
(a)in failing to make any allowance for the fact that the complainants had willingly initiated several episodes of sexual contact with the appellant; and

(b) in failing to make specific findings on that issue.

The circumstances giving rise to these offences were as follows. The two victims of the appellant's offending were sisters, C and N, both of whom were aged 14 and 15 during the period…

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 L C C

Details

AGLC: R v L C C [2006] VSCA 33
Case: [2006] VSCA 33
Decision Date: 16 February 2006

CaseChat Overview and Summary

In the matter of R v L C C, the appellant was convicted of multiple counts of sexual penetration of two children under the age of sixteen. The trial took place in the Supreme Court of Victoria, where the appellant was found guilty and sentenced to a total effective term of imprisonment of 9 years and 2 months, with a non-parole period of 6 years and 2 months. The appellant appealed the sentence on the grounds that it was manifestly excessive. The nature of the crimes was particularly egregious, involving a significant abuse of power and exploitation of vulnerable children by the offender, who was aged 63 at the time of sentencing.

The key legal issues before the court were whether the original sentence imposed was manifestly excessive and whether the court had appropriately taken into account all relevant mitigating factors. The appellant argued that the sentence was excessive, particularly in light of his age and the fact that he had pleaded guilty and made admissions, which were the only evidence of most of the offences. The prosecution contended that the severity of the crimes warranted a substantial sentence to reflect the gravity of the offences and to ensure community protection.

In determining the appeal, the court considered the nature and circumstances of the offences, the appellant's age, his guilty plea, and the absence of physical force. The court held that while the original sentence was harsh, it was not manifestly excessive given the gravity of the crimes. The court emphasised the importance of deterrence and community protection in cases involving the sexual abuse of children. However, the court found that the sentence did not adequately reflect the appellant's age and the fact that he had pleaded guilty. Consequently, the court varied the sentence, imposing a total effective term of imprisonment of 7 years and 6 months, with a non-parole period of 5 years. The appeal was ultimately dismissed as the variation did not constitute a manifest excess.

Orders