Director of Public Prosecutions v Sharp - [2024] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0184

THE DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
CHRISTOPHER SHARP	Respondent

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JUDGES:	NIALL, BOYCE and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2024
DATE OF JUDGMENT:	6 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 24
JUDGMENT APPEALED FROM:	[2023] VCC 1535 (Judge Wraight)

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape, false imprisonment, common assault – Whether sentence manifestly inadequate – Delay of 13 years between offences and sentence – Where respondent 19 years old at time of offences’ commission – Where evidence of respondent’s rehabilitation during period of delay – Appeal allowed.

Sentencing Amendment (Abolition of Suspended Sentences & Other Matters) Act 2013, Sentencing Act 1991, s 27(2)(a).

DPP v Karazisis (2010) 31 VR 634, DPP v Buhagiar and Heathcote [1998] 4 VR 540, R v Todd [1982] 2 NSWLR 517, R v Boland (2007) 17 VR 300, Henry v The King [2023] VSCA 100, DPP v Za Lian; DPP v Hlawnceu [2019] VSCA 75, R v MWH [2001] VSCA 197, discussed.

Counsel
Appellant:		Ms D Piekusis KC with Ms S Lenthall
Respondent:		Mr D Dann KC with Mr C Wareham
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions (Vic)
Respondent:	Theo Magazis and Associates

NIALL JA
BOYCE JA
T FORREST JA:

Introduction

This is an appeal by the Director of Public Prosecutions against sentences imposed on 14 September 2023 upon the respondent, after trial in the County Court, for offences of common assault, false imprisonment and rape. After a plea hearing the respondent was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Common assault (contrary to common law)	5 years	2 months’ imprisonment	N/A
2	False imprisonment (contrary to common law)	10 years	8 months’ imprisonment	N/A
3	Rape	25 years	3 years’ imprisonment	Base
Total Effective Sentence: Non-Parole Period:		3 years, 2 years of which was suspended for 3 years Nil
Pre-sentence Detention Declared:		136 days
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. Registration for 15 years under the Sex Offenders Registration Act 2004.

The respondent had a co-accused at trial. The co-accused was charged with the same offences. The co-accused was found guilty of common assault and false imprisonment, but was acquitted of rape. The co-accused was sentenced as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Common law assault	5 years	2 months’ imprisonment	N/A
2	False imprisonment (common law)	10 years	6 months’ imprisonment	Base
Total Effective Sentence (State): Non-Parole Period:		6 months, wholly suspended for a period of 2 years Nil
Pre-sentence Detention Declared:		Nil
Section 6AAA Statement:		N/A
Other Relevant Orders: N/A

The appellant has one ground of appeal. It is in the following terms:
The sentences imposed on charges 2 and 3, and the total effective sentence, are manifestly inadequate, particularly in light of the partial suspension of the total effective sentence.
For the reasons that follow, we…

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: [2024] VSCA 24
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Sharp, the Court of Appeal of Victoria was called upon to review a sentence imposed on a young offender who had committed serious crimes 13 years prior. The offender, who was 19 years old at the time of the offences, was convicted of rape, false imprisonment, and common assault. The Director of Public Prosecutions sought to appeal the sentence, arguing that it was manifestly inadequate given the gravity of the crimes. The Court was tasked with determining whether the sentence was appropriate in light of the delay in sentencing and the offender’s demonstrated rehabilitation.

The central legal issue before the Court was whether the sentence was manifestly inadequate, taking into account the substantial delay between the commission of the offences and the sentencing, as well as the offender's rehabilitation efforts over the intervening years. The Court examined the principles of sentencing, particularly the relevance of delay in sentencing, and the role of rehabilitation in determining an appropriate sentence. It considered the offender’s age at the time of the offences, the severity of the crimes, and the evidence presented regarding the offender’s rehabilitation during the 13-year period.

The Court of Appeal found that the original sentence was indeed manifestly inadequate. It noted that the delay of 13 years was significant and that the offender’s age at the time of the offences was a mitigating factor. However, the Court also recognised the gravity of the crimes committed, including the serious nature of the sexual offence. The evidence of the offender’s rehabilitation was considered, but ultimately, the Court held that a more severe sentence was warranted. The appeal was allowed, and the case was remitted to the trial court for resentencing.

The final orders of the Court were to allow the appeal, set aside the original sentence, and remit the matter to the trial court for resentencing, taking into account all relevant factors including the delay in sentencing and the offender’s rehabilitation.

Orders