The Queen v Lindsay A.J - [1995] FCA 706

CATCHWORDS
CRIMINAL LAW - Appeal against alleged inadequacy of sentence - Assault with intent to engage in sexual intercourse - Suspended sentence imposed by sentencing judge - Circumstances of offence - Moral responsibility of offender - Socially dysfunctional young offender affected by alcohol at time of offence - Subsequent contrition and guilty plea - Offender undergoing rehabilitative program at time of sentence - Appeal dismissed.

THE QUEEN v ALAN JAMES LINDSAY
No. ACT G15 OF 1995

CORAM:    GALLOP, WILCOX & HILL JJ
PLACE:    CANBERRA
DATE:     4 SEPTEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )   No. ACT G15 of 1995
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:ALAN JAMES LINDSAY

Respondent

CORAM:GALLOP, WILCOX, & HILL JJ

PLACE: CANBERRA
DATE: 22 JUNE 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )   No. ACT G15 of 1995
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:ALAN JAMES LINDSAY

Respondent

CORAM:GALLOP, WILCOX, & HILL JJ

PLACE: CANBERRA
DATE: 4 SEPTEMBER 1995

REASONS FOR JUDGMENT

THE COURT: The Crown appealed against a sentence imposed on the respondent, Alan James Lindsay, by Higgins J of the Supreme Court of the Australian Capital Territory. At the conclusion of the hearing on 22 June 1995 we dismissed the appeal and indicated that we would publish our reasons in due course. These are our reasons.

Mr Lindsay pleaded guilty to a charge of assault with intent to engage in sexual intercourse. The Statement of Facts tendered to the learned Judge included an account of the assault taken from the statement of its victim, a 64 year old woman. The woman had been shopping at Civic. While waiting
for the bus at Civic, to return to her home at Narrabundah, the respondent (whom she did not know) had a short, casual conversation with her. She took no notice of him after the bus arrived. After she alighted from the bus, she commenced walking towards her home. Suddenly, the respondent appeared, put his arm about her neck, forced her to the ground and demanded sex. Despite her screams and pleas for mercy, the respondent removed her skirt and petticoat and pulled her pantyhose and underpants down to her knees. The woman is an asthmatic. She asked the respondent to pass her ventolin pump from her handbag but the respondent replied that she must die, that he wanted to have sex with her. He then penetrated her vagina with two fingers, said that he wanted to have sex from the back and rolled her onto her stomach. At this point, and for no revealed reason, the assault suddenly stopped. The respondent told the woman to…

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 The Queen v Lindsay A.J

Details

AGLC: The Queen v Lindsay A.J [1995] FCA 706
Case: [1995] FCA 706
Decision Date: 4 SEPTEMBER 1995

CaseChat Overview and Summary

In the case of The Queen v Lindsay A.J, the appellant, Lindsay A.J, challenged the adequacy of the sentence imposed by the sentencing judge, contending it was insufficient for the gravity of the offence committed. The dispute involved an assault with intent to engage in sexual intercourse, for which the sentencing judge imposed a suspended sentence. The appeal was heard by the court, which needed to determine whether the sentence was appropriate given the nature of the offence and the circumstances surrounding it.

The central legal issue before the court was whether the sentencing judge had appropriately considered the moral responsibility of the offender, the circumstances of the offence, and the subsequent actions taken by the offender in assessing the appropriate penalty. The court was required to evaluate whether the sentence imposed was adequate in light of the offender's moral responsibility and whether it adequately reflected the seriousness of the offence. Furthermore, the court had to consider the impact of the offender's social dysfunction and alcohol consumption at the time of the offence, as well as the offender's contrition, guilty plea, and participation in a rehabilitative program.

The court found that the sentencing judge had appropriately balanced the various factors in determining the sentence. The judge had considered the offender's moral responsibility, the gravity of the offence, and the subsequent actions taken by the offender. The court concluded that the sentence was appropriate, given the offender's background and the rehabilitative efforts being undertaken. The appeal was dismissed, affirming the sentence imposed by the sentencing judge.

Orders