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R v Lam (No 3)

R v Lam (No 3)

Case [2014] ACTSC 362 10 December 2014

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Leonard Theodore Lam (No 3)
Citation:	[2014] ACTSC 362
Hearing Date(s):	27 November 2014
DecisionDate:	10 December 2014
Before:	Refshauge J
Decision:	1. Leonard Theodore Lam be convicted of committing an act of indecency in the presence of the complainant between 31 August 2011 and 1 October 2011. 2. Leonard Theodore Lam be sentenced to ten months’ imprisonment to commence on 10 September 2014, to take into account pre-sentence custody. 3. Leonard Theodore Lam be convicted of committing an act of indecency in the presence of the complainant on or about 28 July 2012. 4. Leonard Theodore Lam be sentenced to six months’ imprisonment to commence on 10 May 2015, that is, to be cumulative as to three months on the first sentence. 5. Leonard Theodore Lam be convicted of committing an act of indecency in the presence of the complainant on 11 August 2012. 6. Leonard Theodore Lam be sentenced to nine months’ imprisonment to commence on the 10 July 2015, that is, to be cumulative as to five months on the second sentence. 7. The sentence be suspended on 10 December 2014 for a period of eighteen months. 8. Leonard Theodore Lam be required to sign an undertaking to comply with the offenders good behaviour obligations, under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of three years with the following conditions: (a) A probation condition that he be under the supervision of the Director-General, or her delegate, for a period of two years, or such lesser period as the person supervising him considers to be appropriate, and that he obey all reasonable directions of the person supervising him, especially as to addressing his lack of insight towards his offending behaviour; (b) That he submit himself to assessment for the ACT Corrective Services Adult Sex Offender Program and, if found suitable, admit himself to a program and complete it; and (c) That he perform one hundred hours of community service work within twelve months of 10 December 2014. 9. A copy of the psychological report of Dr Michael Barry, dated 17 November 2014, be forwarded by the Registrar of the Supreme Court to the Director-General for the attention of the person supervising him.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW - Judgment and Punishment – Sentencing – Act of indecency in the presence of a child under sixteen years CRIMINAL LAW – Judgment and Punishment – Sentencing Procedure – Victim Impact Statement – Admissibility – Form of Statement – Consent of Victim – Document inadmissible
Legislation Cited:	Crimes Act 1900 (ACT), s 61(1) Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33,(1)(za) 47, 49(1), 50, 51, 53, Pt 4.3
Cases Cited:	Carlton v The Queen (2008) 189 A Crim R 332 Dixon-Jenkins v The Queen (1991) 55 A Crim R 308 Fisher (1989) 40 A Crim R 442 Hili v The Queen (2010) 242 CLR 520 Muldrock v The Queen

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 Lam (No 3)

Details

AGLC: R v Lam (No 3) [2014] ACTSC 362
Case: [2014] ACTSC 362
Decision Date: 10 December 2014

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Leonard Theodore Lam faced conviction and sentencing for acts of indecency committed in the presence of a child under the age of sixteen. The court determined that Lam had committed these acts between 31 August 2011 and 1 October 2011, and on or about 28 July 2012 and 11 August 2012. The case hinged on the admissibility of a victim impact statement and the appropriate sentencing for the crimes committed.

The court addressed the admissibility of a victim impact statement, which had been submitted by the complainant. It was noted that the document was not properly executed, as it did not include the consent of the victim as required by the legislation. Consequently, the court ruled that the document could not be admitted as evidence. The court was then required to consider the appropriate sentence for Lam, taking into account the nature and circumstances of the offences, as well as the principles of justice and deterrence.

In sentencing Lam, the court considered the severity and frequency of the offences, the age of the victim, and the need to protect the community. The court imposed a sentence of ten months' imprisonment for the first offence, six months for the second offence, and nine months for the third offence. These sentences were to be served cumulatively, with a commencement date of 10 September 2014, taking into account the time Lam had already spent in pre-sentence custody. The court also ordered that the sentence be suspended on 10 December 2014 for a period of eighteen months, subject to certain conditions. These conditions included supervision by the Director-General, submission to a sex offender program, and the completion of one hundred hours of community service.

The final orders of the court included the conviction of Leonard Theodore Lam on all counts, the imposition of specific sentences for each offence, and the requirement for Lam to comply with various obligations during his supervision period and thereafter. The court also mandated that a psychological report be forwarded to the Director-General for the supervision of Lam.

Orders

Orders of the court

1. Leonard Theodore Lam be convicted of committing an act of indecency in the presence of the complainant between 31 August 2011 and 1 October 2011.

2. Leonard Theodore Lam be sentenced to ten months’ imprisonment to commence on 10 September 2014, to take into account pre-sentence custody.

3. Leonard Theodore Lam be convicted of committing an act of indecency in the presence of the complainant on or about 28 July 2012.

4. Leonard Theodore Lam be sentenced to six months’ imprisonment to commence on 10 May 2015, that is, to be cumulative as to three months on the first sentence.

5. Leonard Theodore Lam be convicted of committing an act of indecency in the presence of the complainant on 11 August 2012.

6. Leonard Theodore Lam be sentenced to nine months’ imprisonment to commence on the 10 July 2015, that is, to be cumulative as to five months on the second sentence.

7. The sentence be suspended on 10 December 2014 for a period of eighteen months.

8. Leonard Theodore Lam be required to sign an undertaking to comply with the offenders good behaviour obligations, under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of three years with the following conditions:

(a) A probation condition that he be under the supervision of the Director-General, or her delegate, for a period of two years, or such lesser period as the person supervising him considers to be appropriate, and that he obey all reasonable directions of the person supervising him, especially as to addressing his lack of insight towards his offending behaviour;

(b) That he submit himself to assessment for the ACT Corrective Services Adult Sex Offender Program and, if found suitable, admit himself to a program and complete it; and

9. A copy of the psychological report of Dr Michael Barry, dated 17 November 2014, be forwarded by the Registrar of the Supreme Court to the Director-General for the attention of the person supervising him.

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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Citations

AGLC Citation

R v Lam (No 3) [2014] ACTSC 362

Most Recent Citation

R v BI (No 4) [2017] ACTSC 71

Cases citing this decision · 5 of 5 shown

The Queen v Ruwhiu
[2023] ACTCA 18 Para 93

…aggravated robbery, the Court can, from the evidence adduced before it, understand in general terms the harm done to each victim: R v Lam (No 3) [2014] ACTSC 362 at [93]. It would not, however, allow the Court to speculate or identify special harm unless other evidence allowed such an inference to be drawn to the…
R v Ruwhiu
[2022] ACTSC 290 Para 1

…e of aggravated robbery, the Court can, from the evidence adduced before it, understand in general terms the harm done to each victim: R v Lam (No 3) [2014] ACTSC 362 at [93]. It would not, however, allow the Court to speculate or identify special harm unless other evidence allowed such an inference to be drawn to…
R v Cooke (a pseudonym)
[2021] ACTSC 249 Para 1

…(No 2) [2020] ACTSC 98, R v Kelly (Supreme Court of the Australian Capital Territory, Murrell CJ, 28 April 2014), and R v Leonard Theodore Lam (No 3) [2014] ACTSC 362.…
R v Cattle (No 3)
[2020] ACTSC 135 Para 1

…d be discerned in relation to offences of the same general type, fully suspended sentences of imprisonment were not unprecedented: see R v Lam (No 3) [2014] ACTSC 362 at [84]–[88].…
R v BI (No 4)
[2017] ACTSC 71 Para 1

…material to a child has been held to be the commission of an act of indecency in the presence of a child: R v EH [2008] QCA 67 at [4]; R v Lam (No 3) [2014] ACTSC 362 at [15]. In principle, this is the same as the commission of sexual activity in the presence of a child, which has also been held to amount to the co…

View all 5 citing cases →

Cases cited in this decision · 8 of 8 shown

R v DK
[2014] ACTSC 173 Para 1

…In R v DK [2014] ACTSC 173, a thirty-six year old man pleaded guilty to two offences of committing an act of indecency on a ten year old and three offences of committing an act of indecency on a fourteen year old. All offences involving touching and which were described as “in no way trivial”. The offender had no p…
R v Iacuone; R v Duffy; R v JR (No. 2)
[2014] ACTSC 149 Para 1

…that such statements or parts of them are rejected, though it does happen. Burns J rejected parts of a victim impact statement in R v Iacuone (No 2) (2014) 286 FLR 217.…
R v Schmidt
[2013] ACTSC 295 Para 1

…In R v Schmidt [2013] ACTSC 295 at [74], I had occasion to say…
Muldrock v The Queen
[2011] HCA 39 Para 1

…s is shown by the maximum penalties provided by the legislature which are a helpful yardstick by which to measure the facts. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].…
Hili v The Queen
[2010] HCA 45 Para 1

…Conscious of the need to be cautious about sentencing statistics (see Hili v The Queen (2010) 242 CLR 520 at 537; [54]-[55]), I did look at the ACT Sentencing Database, which stated that, of offences under s 61(1) of the Crimes Act , fifty-nine percent of the twenty-two sentences imposed were prison sentences and twe…
Carlton v The Queen
[2008] NSWCCA 244 Para 1

…A helpful comment was made in Carlton v The Queen (2008) 189 A Crim R 332 at 356; [122], where Price J, with whom Hislop J agreed, said…
R v Wilson
[2005] NSWCCA 219 Para 1

…uth Wales as to the role that such a statement makes towards the proof in a court of the question of harm to the victim. See, for example, R v Wilson [2005] NSWCCA 219 at [26]-[29].…
R v Slack
[2004] NSWCCA 128 Para 1

…Queen (1991) 55 A Crim R 308 at 316. It is clear, however, that at common law the proof of such harm must be proof beyond reasonable doubt: R v Slack [2004] NSWCCA 128 at [58].…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
33, 49(1), 50, 51, 53, 7 7 mentions (from Para 1)
Crimes Act 1900 (ACT)
61(1) 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention