De Haas v The King - [2024] VSCA 141

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0038

CHRISTOPHER DE HAAS	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2024
DATE OF JUDGMENT:	27 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 141
JUDGMENT APPEALED FROM:	DPP v Marie (a pseudonym) [2023] VCC 214

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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Rape and associated offences – Applicant sentenced to 14 years and nine months’ imprisonment with 11 year and three month non-parole period – Individual sentences imposed within range – Sexual offences committed as part of one single episode – Orders for cumulation manifestly excessive – Appeal allowed.

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Counsel
Applicant:		Ms R Champion
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	James Dowsley and Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
McLEISH JA:

Introduction

On 12 December 2022, the applicant, now aged 37 years,[1] pleaded guilty before a judge of the County Court to rape[2] (charge 5); false imprisonment[3] (charge 2); sexual assault[4] (charge 3); attempted rape[5] (charge 6); assault with intent to commit a sexual offence[6] (charge 4); common assault[7] (charge 1); and theft[8] (charge 7).
[1]His date of birth is 6 September 1986.
[2]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38(1). The maximum penalty is 25 years’ imprisonment; and the standard sentence is 10 years’ imprisonment.
[3]False imprisonment is a crime at common law. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40(1). The maximum penalty is 10 years’ imprisonment.
[5]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 42(1). The maximum penalty is 20 years’ imprisonment.
[6]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 42(1). The maximum penalty is 15 years’ imprisonment.
[7]Common assault is a crime at common law. The maximum penalty is five years’ imprisonment.
[8]Crimes Act 1958, 74(1). The maximum penalty is 10 years’ imprisonment.
Following a plea in mitigation, on 20 February 2023 the judge sentenced the applicant to a total effective sentence of 14 years and nine months’ imprisonment, with a non-parole period of 11 years and three months, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

1

Common assault

12 months

2 months

2

False imprisonment

2 years

6 months

3

Sexual assault

2 years

6 months

4

Assault with intent to commit a sexual offence

3 years

6 months

5

Rape

11 years

Base

6

Attempted rape

7 years

2 years

7

Theft

12 months

1 month

Total effective sentence:

14 years and 9 months’ imprisonment

Non-parole period:

11 years and 3 months

Pre-sentence detention:

317 days

Section 6AAA declaration:

17 years and 6 months’ imprisonment with 15 years non-parole

Other orders:

Sentenced as a serious sexual offender in respect of…

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 De Haas v The King

Details

AGLC: De Haas v The King [2024] VSCA 141
Case: [2024] VSCA 141
Decision Date: 27 June 2024

CaseChat Overview and Summary

De Haas was convicted of a series of sexual offences committed against a victim during a single incident, and was sentenced to 14 years and nine months imprisonment with an 11 year and three month non-parole period. He appealed the sentence, arguing that the orders for cumulation were manifestly excessive. The appeal was heard by the High Court of Australia.

The legal issue before the court was whether the sentence imposed was manifestly excessive. In particular, the court needed to determine whether the sentence was excessive in the context of the cumulative effect of the sentences, as the individual sentences were within the appropriate range. The court also considered the nature and seriousness of the offences, the degree of culpability, and the need for deterrence and retribution.

The court found that while each individual sentence was within the appropriate range, the cumulative effect of the sentences resulted in a manifestly excessive punishment. The court held that the sentences should have reflected the fact that the offences were committed as part of one single episode. The court also found that the need for deterrence and retribution did not justify the excessive sentence. As a result, the appeal was allowed, and the sentence was quashed.

The court ordered that the matter be remitted to the sentencing court for re-sentencing, taking into account the appropriate principles for cumulation of sentences.

Orders