Director of Public Prosecutions v DC
[2012] VCC 1342
•12 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. AP-10-0440 AP-10-0441
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| D C M D |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 September 2012 | |
CASE MAY BE CITED AS: | DPP v. DC & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1342 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Sampson | |
| For AccusedDC | Ms C.Duckett | |
| For Accused MD | Mr D.A. Langton |
HIS HONOUR:
1 DC and MD, I found you guilty, after a contested hearing in this court. It was a rehearing from the Children's Court. I found each of you guilty of four offences of rape against a single victim, and one offence of false imprisonment of that victim. In respect of you, MD, I found you guilty of one offence of indecent assault against the same victim.
2 I found each of you were instigators of these offences. Each of you were aware that you were in a position of considerable power, as part of a gang of young men with similar intentions. Each of you displayed a wilful lack of respect and a callous disregard for the physical and emotional welfare of the victim. These were, and were intended to be, serious acts of sexual gang violence.
3 The victim impact statements, of the victim and her husband, indicate that your conduct has caused substantial and ongoing harm to the mental wellbeing of each of them and to their marriage. Neither of you, to this day, have shown any remorse, other than for the offence of indecent assault which you, MD, admitted to interviewers only, it seems, because the offence was shown on a mobile phone video footage to have been committed by you. The film clearly showed you committing the offence and you clearly having seen the film and yourself committing the offence, were then, it seems, prepared to admit that you had engaged in that conduct. You did not plead guilty to that offence either in the Children's Court or in this court. Neither of you have accepted to this day any responsibility for your offending conduct.
4 There is no reason, in my opinion, for optimism that either of you would resist the temptation to behave in a similar manner if the opportunity arose again. Your response in interview with police, with the Children's Court psychologist, and with the Department of Human Services, suggest that you are not unintelligent, either of you, and also that neither of you are without guile. I think it is likely that both of you would take more care to avoid detection and conviction if you engaged in similar conduct again. In my opinion, there is a continuing need to protect female members of the community from your violent and wrongful acts.
5 MD, you are 15 years of age and, DC, you are 18 years of age. All the offences are punishable by imprisonment.
6
I have received from your counsel and considered reports, each dated
9 February 2012, from the Children's Court Clinic. I have also received and considered a presentence report, in your case, MD, dated 11 September 2012 and, in your case, DC, 7 September 2012. They are to be read in conjunction with pre sentence reports, dated in your case, 6 February 2012, MD, and, in your case, DC, 3 February 2012, which were submitted to the Children's Court.
7 Both of the more recent reports find that you are suitable, each of you, for a Youth Justice Centre order. In the more recent report, in your case, MD, the report recommends that you be considered suitable for a Youth Justice Centre order and, in your case, DC, the latter report recommends a Youth Justice Centre order. I note of course, and I repeat, that they have to be read in conjunction with earlier reports in respect of each of you, which suggest more lenient sentences as being preferable to those sentences.
8 I think in each case, you have reasonable prospects of rehabilitation.
9 I read with care the judgement of the Court of Appeal in CMK v. R [2011] VSCA 228, I am conscious of the fact that these are proceedings that are conducted within the terms of the Children Youth & Families Act 2005, and the range of sentencing options are those prescribed by s.360(1) of the Act. I must not make a Youth Justice Centre Order unless I am satisfied that there is no other appropriate sentence referred to in preceding sub paragraphs of s.360(1). Section 360(1) provides a hierarchy of sentences, the most serious of which is a sentence which involves convicting the child and ordering that the child be detained in a Youth Justice Centre order under s.412 of the Act. I am satisfied in each of your cases that none of the sentences referred to in the earlier paragraphs of s.360(1) of the Act is appropriate and that no sentence, other than a Youth Justice Centre order is appropriate in either of your cases.
10 In my opinion, the factors set out in sub-s.362(1)(f) and (g), that is to ensure that the child is aware that he or she must bear responsibility for any action by him or her against the law, and the need to protect the community from the violent or other wrongful acts of the child, outweigh the other considerations in sub-paragraphs 1(a) to (e). That is, save for (e) where it requires me to consider the suitability of the sentence for the child and I consider that each of you are suitable for a Youth Justice Centre order. I am satisfied that no sentence other than such an order is appropriate in either of your cases.
11 DC, I order that in respect of each of the five offences of which I find you guilty, you be convicted.
12 In your case, MC, I order that on each of the six charges of which I find you guilty, that you be convicted.
13 You, DC, in respect of Charges 1 and 2, I order that you be detained in a Youth Justice Centre for a period of two years.
14 On Charges 5, 10 and 15, I order that you be detained in a Youth Justice Centre for a period of two years.
15 The sentence on Charge 1 is the base I further order that one year of the sentence on Charge 5 be served cumulatively upon the sentence on Charge 1.
16 The total effective sentence is therefore that you be detained in a Youth Justice Centre for a period of three years.
17 I order that 93 days of pre-sentence detention be reckoned as time served on that sentence and that that period be deducted from the sentence that you are required to serve and that those facts be entered in the records of the court.
18 In respect of you, MD, in respect of Charges 1, 2 and 16, I order you be detained in a Youth Justice Centre for a period of two years.
19 On Charges 5, 10 and 15, I order that you be detained in a Youth Justice Centre for a period of two years.
20 The sentence on Charge 1 is the base I further order that one year of the sentence on Charge 5 be served cumulatively on the sentence on Charge 1.
21 The total effective sentence is therefore that you be detained in a Youth Justice Centre for a total period of three years.
22 I order that 21 days pre-sentence detention be reckoned as time served on those sentences and be deducted from the period that you are required to serve and that those facts be entered in the records of the court.
23 I further order, in each of your cases, that the forensic sample obtained from each of you be retained for placement on the data base.
24 Any other order?
25 MS SAMPSON: No Your Honour.
26 HIS HONOUR: All right, you make take them down. Thank you.
27 (Youth Justice Centre order signed and acknowledged.)
28 (Section 464ZB order signed and acknowledged.)
29 MS DUCKETT: Your Honour, might I be excused?
30 HIS HONOUR: Yes, of course, Ms Duckett, I am sorry.
31 MS DUCKETT: Sorry, I am keeping a jury waiting.
32 HIS HONOUR: Yes, yes, I excuse you at once.
33 MS DUCKETT: Thank you, I appreciate it. Thank you.
34 HIS HONOUR: Yes. Ms Sampson and Mr Langton, you are both excused from the Bar table.
35 MS SAMPSON: Thank you, Your Honour.
36 MR LANGTON: Thank you, Your Honour.
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