R v L (CA115/05)

This case is unusual in two respects. Firstly, it involves sexual offending by a mature woman against a teenage youth. Secondly, the case was remitted to this Court by the Supreme Court to reassess the appropriate sentence after it set aside one of two convictions against the appellant. The appellant was convicted on 11 February 2005 after trial in the High Court on two counts of sexual offending against the victim, and acquitted on three other counts of sexual abuse against the same person. The first count on which the appellant was convicted was one of attempted sexual violation by unlawful sexual connection and the second was actual sexual violation by unlawful sexual connection during non-consensual sexual intercourse. The offending occurred before the 2005 amendment made to s 128 Crimes Act 1961 which, amongst other things, made the offences of sexual violation by unlawful sexual connection or rape, gender neutral. The appellant was sentenced to four and a half years imprisonment on the charge of actual sexual violation and to a concurrent term of three years imprisonment on the charge of attempted sexual violation. The Court dismissed the appellant’s appeal against conviction but allowed an appeal by the Solicitor-General against sentence, increasing it to five and a half years imprisonment. The appellant appealed to the Supreme Court and it allowed the appeal to the extent it related to the attempted sexual violation count and set the conviction on that count aside for jury misdirection. The Supreme Court dismissed the appeal against the conviction for actual sexual violation and remitted the case to this Court for reassessment of the appropriate sentence. The Court found that some reduction of the sentence was necessary to mark the setting aside of the conviction on the charge of attempted sexual violation. The Court considered that the attempted violation count was in the nature of an unsuccessful preliminary to the actual sexual violation which occurred approximately two weeks later. The Court adopted the mid point of nine months reduction, resulting in a sentence of four years nine months imprisonment on the remaining count of sexual violation, to run from the date of the sentence originally imposed by Laurenson J on 18 March 2005.