R v Lane - [2007] VSCA 222

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 365 of 2006

THE QUEEN
	v
GENE PATRICK LANE

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JUDGES:	VINCENT and NEAVE JJA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2007
DATE OF JUDGMENT:	4 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 222

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CRIMINAL LAW – Sentencing – Serious sexual offences against child under 16 – Subsequent illness and severe disability of offender’s wife – Offender needed as full-time carer – Effective loss of all parental support for two young children – Other mitigating factors – Whether “exceptional circumstances” – Whether mercy sufficiently extended – Head sentence of 3 years and 8 months affirmed – Non-parole period reduced from 2 years to 15 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Dr I R L Freckleton with Ms M Karagiannakis	Jellie Laidlaw McDonald Wilson

VINCENT JA:

I will invite Cavanough AJA to deliver the first judgment.

CAVANOUGH AJA:

On 16 November 2006 a judge of the County Court sentenced the appellant to a total effective term of imprisonment of 3 years and 8 months with a non-parole period of 2 years after he pleaded guilty to two counts of sexual penetration of a child under the age of 16 and one count of committing an indecent act with a child under 16. His Honour declared that the appellant was a serious sexual offender pursuant to the Sentencing Act 1991 and that he would be registered pursuant to the Sexual Offenders Registration Act 2004 for the period of his lifetime.

All three offences were committed on the evening of 23 June 1997. The victim was a child of 15 years and 10 months. She was the appellant’s niece by marriage. The appellant, who was born on 16 February 1968, was aged 29 at the time of the offending. At the time of sentence he was aged 38.

There is no dispute about the circumstances of the offending. They were described as follows in the remarks of the sentencing judge:

“… you were at home at Warrnambool with the victim who was then aged 15, being born on 1 August 1981. Your wife at the time was in hospital. During the course of the evening you played for the child a pornographic video called ‘Sweet Sixteen’ which portrayed men having sexual intercourse with teenage girls including group sex.
At some stage in the evening the victim changed into her pyjamas and continued to watch television with you in the lounge room. You then asked her whether she wanted a massage. She believed, according to her statement, it would be a normal back massage. She lay down on the floor on her stomach. You commenced massaging her back and you touched the sides of her breasts, then touched her breasts in a more direct fashion, turned her over onto her back, moved her pyjama top, fondled her breasts, moved her pyjama pants and underwear and…

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 Lane

Details

AGLC: R v Lane [2007] VSCA 222
Case: [2007] VSCA 222
Decision Date: 4 October 2007

CaseChat Overview and Summary

The case of R v Lane came before the court for consideration of sentencing in a serious sexual offence case involving a child under 16 years of age. The offender was convicted and sentenced to a head sentence of three years and eight months imprisonment, with a non-parole period of two years. The offender appealed the sentence on the basis of exceptional circumstances, including the subsequent illness and severe disability of the offender's wife, the need for the offender to act as a full-time carer, the effective loss of all parental support for the two young children, and other mitigating factors. The offender argued that these circumstances amounted to exceptional circumstances warranting a reduction in the sentence.

The court was required to consider whether the mitigating factors presented by the offender amounted to exceptional circumstances that warranted a reduction in the sentence. The court considered the principles of sentencing for serious sexual offences against children, the impact of the offender's sentence on the family, and the need to balance the interests of the community with the rights of the offender and their family. The court noted that while the offender's personal circumstances were indeed difficult, they did not amount to exceptional circumstances warranting a significant reduction in the sentence. However, the court did find that the sentence could be reduced to reflect the impact of the offender's imprisonment on their family.

The court affirmed the head sentence of three years and eight months but reduced the non-parole period from two years to fifteen months. The court found that while the offender's personal circumstances were difficult, they did not warrant a significant reduction in the sentence. However, the court did find that the sentence could be reduced to reflect the impact of the offender's imprisonment on their family. The court considered the need to balance the interests of the community with the rights of the offender and their family, and found that a reduction in the non-parole period was warranted. The court noted that the offender's personal circumstances were difficult, but did not amount to exceptional circumstances warranting a significant reduction in the sentence. The court found that the sentence could be reduced to reflect the impact of the offender's imprisonment on their family.

The court's final orders affirmed the head sentence of three years and eight months imprisonment, but reduced the non-parole period from two years to fifteen months. The offender's appeal was dismissed, and the sentence was upheld with the modification of the non-parole period. The court considered the principles of sentencing for serious sexual offences against children, the impact of the offender's sentence on the family, and the need to balance the interests of the community with the rights of the offender and their family. The court found that the sentence could be reduced to reflect the impact of the offender's imprisonment on their family, but did not find that the circumstances amounted to exceptional circumstances warranting a significant reduction in the sentence.

Orders