R v LD

Case [2009] VSCA 311 18 December 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 673 of 2008

THE QUEEN
	v
LD

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JUDGES	MAXWELL P, REDLICH JA and VICKERY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 January 2009
DATE OF JUDGMENT	18 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 311
JUDGMENT APPEALED FROM	R vLD (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008)

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CRIMINAL LAW – Appeal – Sentencing – Rape – Intellectually handicapped victim – Offender was father and carer of victim – Victim became pregnant – Painful termination of pregnancy – Paternity established by DNA match – Victim removed from family – Offender maintained innocence – Absence of remorse – Sentence of nine years with non-parole period of seven years not manifestly excessive – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentencing – Protection of community – Judge mistakenly sentenced offender as ‘serious sexual offender’ – Whether material error – Scope and limits of s 6D(a) Sentencing Act 1991 (Vic) – Error could not have affected sentence – R v Beary (2004) 11 VR 151 applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC with Mr T R Marsh	Victoria Legal Aid

MAXWELL P
REDLICH JA
VICKERY AJA:

The applicant (‘LD’) was convicted by a County Court jury of one count of rape. The victim was his biological daughter (‘A’). She was aged 24 and LD was aged 54 at the time of the offending.

LD was sentenced to nine years’ imprisonment, with a non-parole period of seven years. He now seeks leave to appeal against the sentence. A cross-appeal by the Director of Public Prosecutions, on the ground that the sentence was manifestly inadequate, was abandoned.

For reasons which follow, we would refuse the application for leave to appeal against sentence.

The circumstances of the offending[1]

[1]Paragraphs 4–15 are taken from the Crown summary which formed the basis of the sentencing.

A is intellectually impaired. She requires 24 hour care and supervision and needs assistance to carry out basic tasks. At the time of the offending A was being cared for by her father and her step-mother (‘M’), a younger brother and a younger sister.

At the opening of the trial, LD made a formal admission that A was ‘intellectually disabled [and] was incapable of giving, at all relevant times, informed consent to an act of penile sexual penetration.’ LD also admitted that he was at all relevant times aware of that incapability.

The offending came to light when A was discovered to be pregnant. An ultrasound test confirmed that she was approximately 24 weeks pregnant. LD and M were advised that, although they were the legal guardians of A, they could not make the decision regarding the termination of the pregnancy. Because of A’s cognitive disability, the consent of the Victorian Civil and Administrative Tribunal (‘VCAT’) was required.[2] With the assistance of a social worker, contact was…

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 LD

Details

AGLC: R v LD [2009] VSCA 311
Case: [2009] VSCA 311
Decision Date: 18 December 2009

CaseChat Overview and Summary

In the matter of R v LD, the appellant was convicted of raping his intellectually handicapped daughter, who subsequently became pregnant. The victim underwent a painful termination of the pregnancy, and paternity was confirmed through a DNA match. The offender, who had been the victim's father and carer, maintained his innocence and displayed no remorse. The primary judge sentenced the offender to nine years imprisonment, with a non-parole period of seven years. The appellant appealed against the sentence, arguing that it was manifestly excessive and that the judge had mistakenly categorised him as a serious sexual offender.

The legal issues before the court were whether the sentence was manifestly excessive and whether the judge's misclassification of the offender as a serious sexual offender constituted a material error. The court considered the appellant's arguments and assessed the sentence imposed by the primary judge. The court also examined the scope and limits of section 6D(a) of the Sentencing Act 1991 (Vic), which pertains to the protection of the community, and whether the judge's error could have affected the sentence.

The court found that the sentence was not manifestly excessive, as it took into account the gravity of the offence and the need to protect the community. The court noted that the offender had abused his position of trust and authority, and that the victim was particularly vulnerable due to her intellectual disability. The court also held that the judge's misclassification of the offender as a serious sexual offender did not constitute a material error, as it could not have affected the sentence imposed. The court applied the principles established in R v Beary (2004) 11 VR 151, which held that a misclassification of this nature does not necessarily lead to an appeal being allowed.

Accordingly, the appeal was dismissed. The sentence of nine years imprisonment with a non-parole period of seven years was upheld as appropriate and not manifestly excessive. The court emphasised the importance of protecting vulnerable victims and holding offenders accountable for their heinous crimes.

Orders