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DPP (Cth) v Hizhnikov

DPP (Cth) v Hizhnikov

Case [2008] VSCA 269 18 December 2008

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 823 of 2008

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
	v
DANIEL HIZHNIKOV

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JUDGES:	MAXWELL P, NETTLE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 December 2008
DATE OF JUDGMENT:	18 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 269

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Criminal law – Crown appeal against sentence – Using carriage service to communicate with person under age of 16 with intention of procuring that person to engage in sexual activity contrary to s 474.26(1) of Criminal Code (Cth) – Person who uses internet to procure a child for sexual contact ordinarily to be imprisoned – Wholly suspended term of imprisonment inadequate in particular circumstances – Principle of double jeopardy – Restraint upon imposing term of actual imprisonment on appeal from wholly suspended term – Discretionary considerations – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Ms W Abraham QC Mr D D Gurvich	Commonwealth Director of Public Prosecutions
For the Respondent:	Mr J Tran	Lac Lawyers Pty Ltd

MAXWELL P
NETTLE JA
WEINBERG JA:

The respondent, Daniel Hizhnikov, pleaded guilty in the County Court at Melbourne to four counts on an indictment/presentment alleging one Commonwealth and three State offences. Count 1, the Commonwealth offence, concerned the use of a computer ‘chat room’ to communicate with someone he believed to be a 14-year-old girl named ‘Lisa’, with the intention of procuring her to engage in sexual activity with him. ‘Lisa’ was in fact a member of the Sexual Crime Squad at the Victoria Police, acting undercover as part of an effort to flush out conduct of this kind.

Count 1 was brought pursuant to s 474.26(1) of the Criminal Code (Cth). The offence carries a maximum penalty of 15 years’ imprisonment. Count 2 concerned the possession of child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic). Counts 3 and 4 involved unrelated non-sexual offences of a relatively minor nature.

On 15 August 2008, the respondent was sentenced on count 1 to 22 months’ imprisonment, to be released forthwith upon entering a recognizance in the sum of $1000, with a requirement that he be of good behaviour for four years. He was sentenced on count 2 to nine months’ imprisonment, wholly suspended. He was fined a total of $500 without conviction on counts 3 and 4.

The Commonwealth Director of Public Prosecutions appeals against the sentence imposed on count 1. He argues, as did his counsel below, that nothing less than a sentence which involved a term of immediate imprisonment was appropriate in relation to that count.

The background facts may be stated briefly. On 6 February 2008 the respondent entered a ‘chat room’ plainly designated as a vehicle for communicating with girls under the age of sixteen. He engaged in a chat session with someone who gave her name as ‘Lisa’ and said that she was 14 years of age. He told her that he was 25 years old and lived in Dandenong. During that initial chat, they…

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 Hizhnikov

Details

AGLC: DPP (Cth) v Hizhnikov [2008] VSCA 269
Case: [2008] VSCA 269
Decision Date: 18 December 2008

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions for the Commonwealth (DPP) versus Hizhnikov, the central issue revolved around a Crown appeal against a sentence imposed on Hizhnikov for using a carriage service to communicate with a person under the age of 16 with the intent to procure that person to engage in sexual activity. The charge was brought under section 474.26(1) of the Criminal Code (Cth), which pertains to the use of a carriage service to procure a child for sexual purposes. The case was heard and determined by the court of appeal.

The legal issues before the court involved the appropriate sentence to be imposed on Hizhnikov, who had been found guilty of the offence. The court was tasked with determining whether the sentence of imprisonment, which had been wholly suspended by the sentencing judge, was adequate under the circumstances. The court also had to consider the principle of double jeopardy and the extent to which this principle restrained the imposition of a term of actual imprisonment on appeal from a wholly suspended term. Furthermore, the court needed to assess the discretionary considerations relevant to the appeal.

The court, after careful consideration, concluded that the wholly suspended term of imprisonment was inadequate in the particular circumstances of the case. The court found that the principle of double jeopardy did not prevent the imposition of a term of actual imprisonment, as the original sentence was not final and conclusive but rather subject to the appellate jurisdiction. The court also noted that the discretionary considerations, including the nature of the offence and the need for deterrence and rehabilitation, supported the imposition of a term of actual imprisonment. Consequently, the court dismissed the appeal and ordered that Hizhnikov serve a term of imprisonment as determined by the court of appeal.

Orders