R v LFJ

Case [2009] VSCA 134 15 June 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 723 of 2007

R
	v
LFJ

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JUDGES:	MAXWELL P and KELLAM JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2009
DATE OF JUDGMENT:	15 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 134
JUDGMENT APPEALED FROM:	R v LFJ (Unreported, County Court of Victoria, Judge Campton, 31 March 2007)

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CRIMINAL LAW – Appeal – Sentence – Multiple counts of incest and indecent act with a child under the age of 16 – Total effective sentence of seven years’ imprisonment with non-parole period of five years – Whether sentencing judge gave appropriate weight to attitude of victim – Whether general deterrence overrides attitude of forgiveness by victim of incest – Sentence not manifestly excessive – Crimes Act 1958 (Vic) ss 44 and 47.

CRIMINAL LAW – Appeal – Sentence – Representative counts – Whether sentencing judge erred in not making finding as to frequency and detail of conduct – Sentencing judge entitled to rely on factual basis set out in Crown opening on plea – DPP v CPD [2009] VSCA 114.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L Carter	Victoria Legal Aid
For the Respondent	Mr S Cooper	Office of Public Prosecutions

MAXWELL P
KELLAM JA:

The appellant (‘LFJ’) pleaded guilty to two representative counts of incest, two discrete counts of incest and two representative counts of committing an indecent act with a child under the age of 16. The victim in each case was his son, who was aged between 12 and 13 when the offences occurred.

LFJ was sentenced in the County Court as follows:

Count

Offence

Maximum Penalty

Sentence imposed

Cumulation

1

Incest (representative)

25

3 y

8 m

2

Incest (representative)

25

3 y

8 m

3

Incest

25

4 y

Base

4

Incest

25

4 y

1 y

5

Indecent act with child under 16

(representative)

10

1 y 6 m

4 m

6

Indecent act with child under 16

(representative)

10

1 y 6 m

4 m

Total effective sentence: 7 years

Non-parole period: 5 years.

The circumstances of the offending

What follows is taken from the Crown opening as presented on the hearing of LFJ’s plea. As conventionally occurs, the Crown opening constituted the factual basis upon which, by agreement between the Crown and the defence, the judge was asked to impose sentence.

The offending occurred between January 2004 and December 2005. The victim (‘R’) was living at home with his mother and father. He was in grade six when the offending began, and in year seven when it finished.

R disclosed the offending to his mother in November 2006. He said that the abuse had not occurred for approximately 12 or 18 months. R and his mother then went and saw the pastor at their church, and told him what had happened. The pastor contacted the police, then contacted LFJ by telephone and asked him to come and see him. When the pastor confronted LFJ with the allegations, he…

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 LFJ

Details

AGLC: R v LFJ [2009] VSCA 134
Case: [2009] VSCA 134
Decision Date: 15 June 2009

CaseChat Overview and Summary

In the matter of R v LFJ, the appellant was convicted of multiple counts of incest and an indecent act with a child under the age of 16, leading to an appeal against his sentence. The Victorian Court of Appeal was tasked with reviewing the sentence imposed, which was a total effective term of seven years’ imprisonment with a non-parole period of five years. The appeal focused on whether the sentencing judge had appropriately considered the victim's attitude towards the crimes and whether the principle of general deterrence outweighed the victim's forgiveness. Additionally, the appeal questioned whether the sentencing judge made an error in not determining the frequency and detail of the conduct.

The court addressed the contention that the sentencing judge failed to adequately weigh the victim's attitude of forgiveness. It was argued that this attitude should have influenced the severity of the sentence. However, the court found that the sentencing judge did not err in this regard, as the principle of general deterrence was deemed to be of paramount importance, overriding the victim's forgiveness. Furthermore, the court held that the sentence was not manifestly excessive, considering the nature and impact of the crimes committed.

In considering the appellant's argument that the sentencing judge should have made a specific finding regarding the frequency and detail of the conduct, the court held that the sentencing judge was entitled to rely on the factual basis set out in the Crown's opening on plea, as per the decision in DPP v CPD. The court found no error in the sentencing judge's approach.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence was upheld. The court concluded that the sentence imposed was appropriate given the circumstances of the case.

Orders