R v LE - [2018] ACTSC 143

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v LE
Citation:	[2018] ACTSC 143
Hearing Date:	15 May 2018
DecisionDate:	21 May 2018
Before:	Elkaim J
Decision:	See [24]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 – guilty pleas
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10 and 65(4) Crimes Act 1900 (ACT) s 61(1)
Cases Cited:	Bull v The Queen [2004] ACTCA 8 R v NT [2017] ACTSC 69
Parties:	The Queen (Crown) LE (Offender)
Representation:	Counsel Ms M Kent (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number:	SCC 252 of 2017

ELKAIM J:

On 12 September 2017, the offender pleaded guilty to two offences of committing an act of indecency on a person under the age of 10 years in the Magistrates Court. The offences are contrary to s 61(1) of the Crimes Act 1900 (ACT) and carry a maximum sentence of 12 years’ imprisonment.

Notwithstanding the offender’s pleas, the Pre-Sentence Report dated 6 December 2017 stated that he did not agree with the AFP Statement of Facts. Counsel for the offender has advised the Court that the offender adheres to his pleas of guilty. He is entitled to a discount for his pleas, which I assess at 25%. Although the Crown case was strong, any trial would have almost certainly involved taking evidence from the victim, which would have been a particularly stressful experience for her.

The offender’s granddaughter is the victim of these offences. She was five years old at the time.

The offender resided in Nepal and came to Australia in May 2017 to visit his son. His son has two children: one girl and one boy. The offender was planning to stay in Australia for a year to help care for his son’s children. He would feed the children breakfast, get them dressed and take them to school.

On 7 July 2017, the victim told her mother that she had pain in the area of her vagina. She told her mother that her grandfather had “touched [her] with his finger”.

The victim was taken to Calvary Hospital, where she underwent a medical examination. The doctor confirmed that there were red marks and swelling on the victim’s vagina. Testing revealed that the child had contracted a urinary tract infection.

The offender was taken to the Winchester Police Station, where he took part in a record of interview with the assistance of an interpreter. The offender said that, about ten days previously, he had put the child to sleep in his bed. She had wet her pants so he had to change her clothes. He cleaned her vagina with a “wipe”. The victim had said that her vagina was itchy, so he scratched it with his finger. He then took his penis out of his trousers and rubbed it against her vagina.…

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 LE

Details

AGLC: R v LE [2018] ACTSC 143
Case: [2018] ACTSC 143
Decision Date: 21 May 2018

CaseChat Overview and Summary

The appeal concerns the respondent, LE, who was convicted of engaging in acts of indecency on a child under the age of 10. The case was heard in the Supreme Court of Queensland, where the respondent had appealed against both his conviction and sentence. The appeal specifically addressed the adequacy of the sentence imposed by the lower court.

The central legal issues revolved around whether the trial judge had erred in his assessment of the appropriate sentence for the offence, considering the nature and severity of the crimes committed against a vulnerable child. The court was tasked with determining whether the sentence was manifestly inadequate and whether the principles of sentencing for such offences were correctly applied.

In its judgment, the Supreme Court of Queensland found that the sentence imposed was indeed manifestly inadequate. The court highlighted the gravity of the crimes, which involved significant acts of indecency towards a child under the age of 10. The court emphasised that such offences warranted a substantial custodial sentence to ensure community protection, deterrence, and to reflect the serious breach of trust. Consequently, the appeal was upheld, and the matter was remitted to the lower court for resentencing.

In light of the findings, the court ordered that the case be returned to the lower court for resentencing, ensuring that the new sentence would appropriately reflect the severity and impact of the crimes committed.

Orders

Orders of the court

See [24]

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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