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DPP (Cth) v Haynes

DPP (Cth) v Haynes

Case [2017] VSCA 79 6 April 2017

Criminal Liability

Sentencing

Crown Appeals

Mandatory Recognisance Release Order (RRO)

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0160

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Appellant
v
CONNOR HAYNES	Respondent

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JUDGES:	REDLICH, WEINBERG and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2017
DATE OF JUDGMENT:	6 April 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 79
JUDGMENT APPEALED FROM:	DPP v Haynes (Unreported, County Court of Victoria, Judge Quin, 18 July 2016))

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CRIMINAL LAW – Sentence – Crown appeal – Sexual offending or harassment via the internet – Offences under the Criminal Code (Cth), ss 474.25A and 474.26 – Use of false identity – Use of social media to blackmail children into sexual activity – Total effective sentence of 30 months with 10 months pre-release period under recognisance release order (‘RRO’) – Whether manifestly inadequate – Individual sentences and total effective sentence low but not egregiously so – Pre-release period manifestly inadequate – Residual discretion to dismiss appeal – Tector v The Queen (2008) 186 A Crim R 133; R v Gajjar (2008) 192 A Crim R 76; DPP (Cth) v Hizhnikov [2008] VSCA 269; R v Fuller [2010] NSWCCA 192; R v Leask (2013) 236 A Crim R 1; DPP v Chatterton [2014] VSCA 1; DPP (Cth) v Walls [2014] VSCA 323; R v Engeln [2014] QCA 313; R v Tahiraj [2014] QCA 353; DPP v Watson [2016] VSCA 73; DPP (Cth) v Boyles [2016] VSCA 267, discussed
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CRIMINAL LAW – Crown appeals – Obligations on prosecution during plea in mitigation – Sentence not in excess of 3 years – RRO mandatory – Failure of prosecution to oppose disposition of RRO or likely pre-release period – Whether Director should be permitted to challenge sentences imposed – Whether amendment to ground of appeal to attack pre-release period of 10 months should be allowed – Nature of pre-release period discussed – Burden on Crown on plea not lessened by Barbaro v The Queen (2014) 253 CLR 58 – Obligation to explain relevance of statistics and tables of cases – DPP (Cth) v Thomas [2016] VSCA 237, discussed – Leave to amend refused – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms M Fox QC with Ms S Keating	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Respondent	Mr P J Doyle	Slater and Gordon

REDLICH JA

WEINBERG JA
McLEISH JA:

The respondent pleaded guilty in the County Court to nine charges relating to sexual offending or harassment via the internet. He was sentenced to 30 months’ imprisonment on a recognisance release order (‘RRO’) with a pre-release period of 10 months. The Commonwealth Director of Public Prosecutions appeals against the sentence on the ground that the individual sentences and total effective sentence are manifestly inadequate. The Director seeks leave to amend her ground of appeal to also challenge the pre-release period.

Summary of conclusions

We would dismiss the appeal on the existing ground for the following reasons. The individual sentences and the total…

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 Haynes

Details

AGLC: DPP (Cth) v Haynes [2017] VSCA 79
Case: [2017] VSCA 79
Decision Date: 6 April 2017

CaseChat Overview and Summary

The case of DPP (Cth) v Haynes involved a Crown appeal against the sentencing of the accused, Haynes, who had been found guilty of using a false identity to engage in sexual communication with children and to blackmail them into engaging in sexual activity. The matter was heard in the Victorian Court of Appeal. The central issue for the court was whether the total effective sentence of 30 months, with a pre-release period of 10 months under a recognisance release order, was manifestly inadequate.

The court examined both the individual sentences imposed on the accused for each offence and the total effective sentence. While the individual sentences and the total effective sentence were considered low, they were not deemed egregiously so. However, the court found the pre-release period of 10 months to be manifestly inadequate. The court considered its residual discretion to dismiss the appeal, referencing several precedents that highlighted the importance of proportionality in sentencing and the circumstances in which an appeal may be dismissed. The court noted that the pre-release period did not adequately reflect the seriousness of the offences committed.

Given that the prosecution failed to oppose the disposition of the recognisance release order or the likely pre-release period during the plea in mitigation, the court was hesitant to allow the Director to challenge the sentences imposed. The court also refused leave to amend the grounds of appeal to specifically attack the pre-release period, as the prosecution's failure to raise the issue during the plea did not lessen its burden. The court held that the prosecution was obligated to explain the relevance of statistics and tables of cases, as per DPP (Cth) v Thomas [2016] VSCA 237, a duty it had not fulfilled. Consequently, the appeal was dismissed.

Orders