Director of Public Prosecutions v R E E - [2002] VSCA 65

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 256 of 2001

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
R.E.E.

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JUDGES:	PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2002
DATE OF JUDGMENT:	8 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 65

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Criminal law - Sentence - Aggravated burglary and rape - Respondent sentenced to three years' detention in youth training centre, not including seven months' pre-sentence detention - Crown appeal - Young offender - Rehabilitation - General deterrence - Detention in youth training centre - Crown not submitting during plea that three years' detention inappropriate - Manifest inadequacy - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr W.B. Zichy-Woinarski, Q.C. and Mr J. Lavery	Youth Advocacy Legal Service

PHILLIPS, C.J.:

I shall ask my brother Charles to give the first judgment in this matter.

CHARLES, J.A.:

The respondent, who was born on 11 May 1983, pleaded guilty on 30 May 2001 in the County Court at Melbourne to a presentment alleging one count of aggravated burglary, one count of false imprisonment, four counts of rape, and a threat to inflict serious injury. The respondent had been before the Melbourne Children's Court in 1996 and 2000, and 17 findings of guilt had then been recorded. On 13 September 1996, the respondent had pleaded guilty to charges of arson, burglary and theft and was sentenced to probation for 18 months. Then on 11 April 2000 he had pleaded guilty to various charges of burglary and theft and was sentenced to 12 months' probation. The present offences were committed while he was still on probation. The maximum penalties for the relevant offences were as follows: for aggravated burglary, 25 years', for false imprisonment, 10 years', for rape, 25 years' and for a threat to inflict serious injury, 5 years' imprisonment respectively.

During the plea evidence was given on behalf of the respondent by Bruce Thomas Ford. A report dated 20 April 2001 from a child psychiatrist, Dr Robert Adler, was tendered. At the end of the plea the proceedings were adjourned to enable a pre-sentence report to be obtained from the Department of Human Services, and the respondent was remanded in custody.

On 24 August 2001 the respondent was sentenced on the count of aggravated burglary and the four counts of rape to three years' detention in a youth training centre in each case, and on the counts of false imprisonment and threat to inflict serious injury to two years' detention in a youth training centre in each case. The sentences were all ordered to be served concurrently, resulting in a total effective sentence of three years' detention. However, there had been 197 days of pre-sentence detention (which had all been served in adult gaols), which the sentencing judge directed was not to be taken into account. The respondent was at the time of sentence aged 18.

The Director of Public Prosecutions…

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

Case: [2002] VSCA 65
Decision Date: 8 May 2002

CaseChat Overview and Summary

The respondent, R E E, was convicted of aggravated burglary and rape. He was sentenced to three years' detention in a youth training centre, which did not include the seven months' pre-sentence detention he had already served. The Director of Public Prosecutions appealed the sentence, arguing that it was manifestly inadequate. The court was tasked with determining whether the sentence was appropriate in light of the severity of the crimes and the need for general deterrence and rehabilitation.

The central legal issues before the court were whether the sentence was manifestly inadequate and, if so, whether the appeal should be allowed. The court considered the principles of sentencing, including the need for general deterrence, the seriousness of the crimes, and the potential for rehabilitation. The court also had to consider whether the Crown had raised the issue of the sentence's adequacy during the plea, as this could impact the ability to appeal.

The court found that the sentence was indeed manifestly inadequate, given the gravity of the offences and the need for general deterrence. However, the Crown had not submitted during the plea that the three-year detention sentence was inappropriate. Despite the inadequacy of the sentence, the court determined that the Crown's failure to raise the issue during the plea precluded the appeal from succeeding. Consequently, the appeal was dismissed, and the original sentence remained in place.

Orders