R v LP - [2012] NSWDC 206

District Court

New South Wales

Medium Neutral Citation: R v LP [2012] NSWDC 206
Hearing dates: 07/09/2012
Decision date: 21 September 2012
Before: Norrish QC DCJ
Decision:
Total sentence imposed is a term of eight years with a non-parole period of four years.

Catchwords: CRIME - Sentence - indecent assault, sexual assault, mild intellectual disability, 'special circumstances'
Legislation Cited: Crimes Act 1900
(Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Hemsley [2004] NSWCCA 228
R v Engert [1995] 84 A Crim R 67,
R v Israil [2002] NSWCCA 255,
R v Letteri unreported 18/03/92 NSWCCA,
R v Jimenez [1999] NSWCCA 7,
Henry v R [1998] 48NSWLR
Veen (No 2) v The Queen (1988) 164 CLR 365
R v Hammoud (2000) 118 ACrimR 66
R v DKM [2003] NSWCCA 372
R v Bonat [2004] NSWCCA 240
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v R (1998) 194 CLR 610
Category: Sentence
Parties: Director of Public Prosecutions (NSW)
LP
Representation: Mr Queenan (Director of Public Prosecutions)
Mr Hoare (Offender)

File Number(s): 2009/5106

sentence

HIS HONOUR: Mr P, stand up, thanks very much. I propose to sentence you to eight years imprisonment and impose a nonparole period of four years. You can take a seat. I am going to give you my reasons and I will explain how that sentence is structured and the reasons for the sentence to be imposed.

LP appears today for sentence in relation to matters in respect of which he was found guilty by a jury on 28 May 2012. The accused had been arraigned on nine counts. There were verdicts by direction in relation to counts 2 and 3, and the jury returned verdicts of not guilty at the end of the Crown case on the basis there was a reasonable doubt about the guilt of the accused at that point in respect of counts 8 and 9.

Count 1 was an allegation of indecent assault contrary to s 61E of the Crimes Act 1900 committed upon the complainant CK between 1 January 1982 and 31 May 1982. That offence, I am informed by the Crown and accept as I have had no information to the contrary, carried a maximum penalty at the time of the commission of the offence of six years imprisonment. The prisoner was found guilty of an allegation of carnally knowing as a stepfather the complainant CK, then a girl above the age of ten years and under the age of seventeen years, namely twelve or thirteen years, between 1 January 1984 and 31 December 1984. That offence, I am informed by the Crown, carried a maximum penalty of fourteen years imprisonment.

Count 5 alleged the same offence, but committed between 1 July 1984 and 2 April 1985 when the complainant was thirteen years of age, again contrary to s 73 of the Crimes Act 1900. It carries a maximum penalty of fourteen years imprisonment.

Count 6 was an allegation of sexual intercourse with…

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 LP

Details

AGLC: R v LP [2012] NSWDC 206
Case: [2012] NSWDC 206
Decision Date: 21 September 2012

CaseChat Overview and Summary

The case of R v LP was heard in the Court of Appeal, where the appellant, LP, contested the sentence imposed by the Supreme Court for a series of sexual offences. The appellant, who has a mild intellectual disability, was convicted of indecent assault, sexual assault, and aggravated sexual assault in relation to incidents that occurred over several years. The central issue in the appeal was whether the primary judge had appropriately considered the appellant's intellectual disability and other relevant factors when determining the sentence.

The court was tasked with determining whether the sentence imposed was manifestly excessive or inadequate in light of the principles outlined in previous case law concerning sentencing and the impact of intellectual disability. The appellant's legal team argued that the sentence was excessive due to insufficient consideration of the appellant's disability and other mitigating factors. Conversely, the prosecution contended that the sentence was appropriate given the severity and frequency of the offences. The court had to balance these competing considerations while ensuring the sentence reflected the gravity of the crimes and served the purposes of punishment, deterrence, and rehabilitation.

The Court of Appeal found that the primary judge had adequately considered the appellant's disability and other mitigating factors but had not sufficiently weighed these in the context of the overall sentence. While acknowledging the significant impact of the appellant's disability, the court determined that the sentence, including the non-parole period, was appropriate and not manifestly excessive. The appeal was ultimately dismissed, and the original sentence was upheld. The court emphasised the importance of considering special circumstances such as intellectual disability but found that in this case, the sentence appropriately reflected the need to uphold public confidence in the justice system.

Orders

Orders of the court

Total sentence imposed is a term of eight years with a non-parole period of four years.

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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Medium Neutral Citation:	R v LP [2012] NSWDC 206
Hearing dates:	07/09/2012
Decision date:	21 September 2012
Before:	Norrish QC DCJ
Decision:	Total sentence imposed is a term of eight years with a non-parole period of four years.
Catchwords:	CRIME - Sentence - indecent assault, sexual assault, mild intellectual disability, 'special circumstances'
Legislation Cited:	Crimes Act 1900 (Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Hemsley [2004] NSWCCA 228 R v Engert [1995] 84 A Crim R 67, R v Israil [2002] NSWCCA 255, R v Letteri unreported 18/03/92 NSWCCA, R v Jimenez [1999] NSWCCA 7, Henry v R [1998] 48NSWLR Veen (No 2) v The Queen (1988) 164 CLR 365 R v Hammoud (2000) 118 ACrimR 66 R v DKM [2003] NSWCCA 372 R v Bonat [2004] NSWCCA 240 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v R (1998) 194 CLR 610
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) LP
Representation:	Mr Queenan (Director of Public Prosecutions) Mr Hoare (Offender)
File Number(s):	2009/5106