CRIMINAL LAW – Sentence - Incest offences committed over 37 years and spanning three generations of victims - Sustained and repetitious offending - Worst category of offending - Applicant 77 at time of re-sentence and in ill health - Applicant suffering from major depressive illness and conversion disorder – Mental condition a supervening event after offences detected - Conditions brought on by disclosure of crimes and prospect that applicant will spend remainder of life in custody - Extent to which principles in R v Verdins should apply - Whether any moderation of general and specific deterrence appropriate - Reduction in sentence because imprisonment more onerous - Principles to be applied where elderly offender in ill health - Discount for plea of guilty - Whether discount should be reduced because of strength of Crown case - R v Pajic [2009] VSCA 53 applied - Admission as to offences otherwise unknown - Crown concedes mechanistic approach to individual sentences and orders for cumulation - R v Izzard (2003) 7 VR 480 applied - Moderate individual sentences and greater cumulation appropriate - Appeal allowed - Applicant sentenced to 15 years and 7 months’ imprisonment with non-parole period of 10 years and 6 months.
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Appearances:
Counsel
Solicitors
For the Crown
Mr B Sonnet
Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant
Mr C G Mandy
Victoria Legal Aid
NEAVE JA REDLICH JA HOLLINGWORTH AJA:
Background
The appellant, RLP, was presented on 30 counts of sexual offences against eight victims which occurred over a 37 year period. Initially, RLP pleaded guilty to all 30 counts, but during the course of the plea hearings counsel for the Director announced that no admissible evidence was available to support count 25, and so an acquittal was entered on that count. The appellant therefore fell to be sentenced on the remaining 29 counts.
The detail of each count is set out in the appendix to these reasons. On 30 September 2008 he was sentenced as follows.
1.On each of the six counts of incest – counts 7, 8, 19, 20, 26 and 30 - to 10 years’ imprisonment, the sentences on counts 8, 19, 20, 26 and 30 to be served concurrently with the sentence imposed upon count 7, except that one year of each of the sentences on counts 19, 26 and 30 be served cumulatively upon the sentence imposed upon count 7 and upon all the other sentences imposed;
2.On each of the two counts of carnal knowledge of a girl under the age of 10 years – counts 5 and 12 – to 10 years’…
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.
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Details
AGLC
R v RLP [2009] VSCA 271
Case
[2009] VSCA 271
Decision Date
CaseChat Overview and Summary
The appellant, RLP, was convicted of multiple instances of incest committed over a 37-year period, affecting three generations of victims. The case reached the Court of Appeal, which was tasked with re-sentencing the appellant. The court had to address the severity and repetitive nature of the offences, the age and health of the appellant at the time of sentencing, and the impact of a plea of guilty on the final sentence.
The central legal issues involved determining the appropriate sentence for the sustained and repetitive incestuous offences, considering the appellant's advanced age and deteriorating health, and assessing the effect of his mental condition, which emerged after the crimes were disclosed. The court also had to consider whether the principles in R v Verdins should apply and whether any mitigation was appropriate for the general and specific deterrence of the crime. The court examined the principles to be applied in sentencing an elderly offender in ill health and whether a discount for the plea of guilty should be reduced due to the strength of the Crown's case.
The Court of Appeal found that the original sentences were excessive and did not adequately consider the appellant's age and health. The court reduced the overall sentence, applying the principles from R v Pajic and R v Izzard, which emphasised the need for moderate individual sentences and greater cumulation. The appeal was allowed, and the appellant was re-sentenced to 15 years and 7 months’ imprisonment, with a non-parole period of 10 years and 6 months. The court concluded that the new sentence reflected the principles of justice and deterrence while taking into account the appellant's unique circumstances.