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…
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- AGLC
- DPP (Cth) v Haynes [2017] VSCA 79
- Case
- [2017] VSCA 79
- Decision Date
CaseChat Overview and Summary
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.
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