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DPP (Cth) v Boyles (a pseudonym)

DPP (Cth) v Boyles (a pseudonym)

Case [2016] VSCA 267 15 November 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0059

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
v
ROWAN BOYLES (A PSEUDONYM)[1]	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	MAXWELL P, TATE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2016
DATE OF JUDGMENT:	15 November 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 267
JUDGMENT APPEALED FROM:	DPP v Boyles (a pseudonym) (Unreported, County Court of Victoria, Judge Gaynor, date of sentence 16 March 2016, publication of reasons for sentence 8 April 2016)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Using a carriage service to procure a person under 16 years of age for sexual activity, using a carriage service to solicit child pornography material – Sentenced to Community Correction Order for 2½ years – Conditions requiring 250 hours unpaid work, mental health assessment and treatment, judicial monitoring – Specific error – Error acknowledged by judge in written reasons – Whether different sentence should be imposed – Mental illness – Deterioration of respondent’s mental state – Adverse effect of Crown appeal – Respondent at liberty – Residual discretion exercised – Appeal dismissed – R v Gajjar (2008) 192 A Crim R 76; Director of Public Prosecutions (Cth) v Hizhnikov (2008) 192 A Crim R 69 distinguished, Western Australia v Collier (2007) 178 A Crim R 310; R v Nahlous (2013) 228 A Crim R 503 considered – Criminal Code (Cth) ss 474.26(1), 474.19(1)(iv) – Criminal Procedure Act 2009 s 289(1).

CRIMINAL LAW – Appeal – Sentence – Sentencing approach in Boulton v The Queen inapplicable to Commonwealth offences – Whether judge took into account principles in Boulton v The Queen – No error – Atanackovic v The Queen (2015) 45 VR 179, Boulton v The Queen (2014) 46 VR 308 considered.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Residual discretion to dismiss appeal even where error identified – Adverse impact of appeal on respondent offender – Offender at liberty – Purpose of Crown appeals – Director of Public Prosecutions v Karazisis (2010) 31 VR 634; CMB v Attorney-General (NSW) (2015) 256 CLR 346 considered.

CRIMINAL LAW – Sentencing – Sentencing principles – Mental illness – Moral culpability – Offender suffering from bipolar disorder – Manic state – Causal link to offending – Whether moral culpability reduced – Whether involuntary impairment of mental functioning – Offender stopped taking prescribed medication – Offender aware of adverse effects of stopping medication – No reduction in moral culpability – Verdins v The Queen (2007) 16 VR 269 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms W J Abraham QC with Ms K Breckweg	Mr M Pedley Solicitor for Public Prosecutions (Cth)
For the Respondent	Mr M D Phillips with Mr R De Vietri	Victoria Legal Aid

MAXWELL P
OSBORN JA:

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 DPP (Cth) v Boyles (a pseudonym)

Details

AGLC: DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267
Case: [2016] VSCA 267
Decision Date: 15 November 2016

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions (Commonwealth) appealed against the sentence imposed on the respondent, who was convicted of using a carriage service to procure a person under 16 years of age for sexual activity and using a carriage service to solicit child pornography material. The respondent was sentenced to a community correction order for 2½ years, which included conditions requiring 250 hours of unpaid work, mental health assessment and treatment, and judicial monitoring. The appeal was based on the argument that the sentence was manifestly inadequate and that the judge had failed to take into account the principles in Boulton v The Queen, which outlined the approach to sentencing Commonwealth offences.

The court was required to decide whether the judge had erred in imposing the sentence and whether the appeal should be dismissed due to the adverse impact on the respondent. The court noted that the sentencing principles in Boulton v The Queen did not apply to Commonwealth offences and that the judge had not erred in this respect. The court also considered the residual discretion to dismiss the appeal, even where error was identified, and the adverse impact of the appeal on the respondent, who was at liberty. The purpose of Crown appeals was to ensure that sentences imposed by the courts were not manifestly inadequate.

The court concluded that the judge had not erred in imposing the sentence and that the appeal should be dismissed. The court exercised its residual discretion to dismiss the appeal due to the adverse impact on the respondent, who was at liberty, and the fact that the respondent had deteriorated mentally since the sentence was imposed. The court noted that the respondent was suffering from bipolar disorder and was in a manic state at the time of the offending, but there was no causal link between the disorder and the offending. The court also noted that the respondent had stopped taking prescribed medication and was aware of the adverse effects of doing so, which did not reduce the moral culpability. The appeal was dismissed, and the original sentence stood.

Orders