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DPP v Abad

DPP v Abad

Case [2016] VSCA 279 22 November 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0186

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	V
FRANCO ABAD	Respondent

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JUDGES	WARREN CJ, WHELAN JA, BEALE AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 November 2016
DATE OF JUDGMENT	22 November 2016
MEDIUM NEUTRAL CITATION	[2016] VSCA 279
JUDGMENT APPEALED FROM	DPP v Abad (Unreported, County Court of Victoria, Judge Ryan, 19 August 2016)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Respondent found guilty of sexual penetration of a child under the age of 16 – Sentenced to adjourned undertaking for two years with conviction – Whether sentence manifestly inadequate – Clarkson v R (2011) 32 VR 361 considered.

CRIMINAL LAW — Appeal — Sentence — Crown appeal — Residual discretion to dismiss appeal even where error identified – Position of prosecutor at plea – DPP v Holder (2014) 41 VR 467 and DPP v Karazisis (2010) 31 VR 634 considered.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Ms K E Judd QC	Mr John Cain, Solicitor for Public Prosecutions
For the Respondent	Mr R F Edney with Mr R Slattery, solicitor	Doogue O’Brien George

WARREN CJ:

The respondent was found guilty of one count of sexual penetration of a child under 16 years.[1] The sentencing judge imposed a sentence of an adjourned undertaking for a period of two years. The respondent was placed on the Sex Offenders Register for a period of 15 years.[2]
[1]In breach of s 45(2)(c) of the Crimes Act 1958 with a maximum penalty of 10 years’ imprisonment.
[2]Sex Offenders Registration Act 2004 ss 6, 7, 34.

The Crown now appeals against the sentence submitting that the absolute minimum sentence that ought have been imposed was a community correction order.

Factual background

At the time of the offence the victim was 14 years of age. She was in the care of the Department of Human Services (DHS). The respondent was 31 years of age.

In July 2015 the victim attended the Melbourne Children’s Court in relation to DHS proceedings. The respondent was employed by Wilson Security as a security guard at the Children’s Court. He was working at the front security entrance to the Court. The respondent gave the victim his phone number. The respondent and the victim maintained regular contact via telephone and text in the days following. The victim told the respondent she was 17 years old.

Shortly after, they commenced a sexual relationship for about six weeks. During this time the respondent believed the victim was 17 years old.

The relationship came to the attention of the police. On 3 September 2015 the respondent was questioned by the police. He denied knowing the victim. The police informed the respondent that the victim was 14 years old and in DHS care. The respondent was warned that it would be a criminal offence if he engaged in sexual activity with her.

The respondent returned home and discussed his police conversation with his sister and then the victim, who…

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 v Abad

Details

AGLC: DPP v Abad [2016] VSCA 279
Case: [2016] VSCA 279
Decision Date: 22 November 2016

CaseChat Overview and Summary

The case of DPP v Abad, which was heard in the Victorian Court of Appeal, involved a respondent who was found guilty of sexually penetrating a child under the age of 16. The respondent was sentenced to an adjourned undertaking for two years, with the conviction recorded. The Director of Public Prosecutions (DPP) appealed against the sentence, arguing that it was manifestly inadequate. The central legal issue before the court was whether the sentence imposed was manifestly inadequate and whether the court should exercise its residual discretion to dismiss the appeal despite identifying an error.

The court, in reviewing the sentence, considered the principles set out in Clarkson v R, where the Court of Appeal found that the original sentence was manifestly inadequate. The court acknowledged that the offence was of a serious nature, given the vulnerability of the victim and the gravity of the crime. However, the court also took into account the respondent's personal circumstances and the fact that he had no prior criminal record. In determining the adequacy of the sentence, the court applied the principles set out in Clarkson v R, balancing the need for punishment and deterrence against the personal circumstances of the offender.

In deciding whether to exercise its residual discretion to dismiss the appeal, the court considered the position of the prosecutor at the plea stage. It was noted that the DPP had taken into account the personal circumstances of the respondent when entering into the plea agreement. The court found that, despite the error in sentencing, the overall outcome was just and appropriate. The court, therefore, exercised its residual discretion to dismiss the appeal. The court's decision was influenced by the precedents set in DPP v Holder and DPP v Karazisis, which established that the court may dismiss an appeal even if an error is identified, provided that the overall outcome is just.

The final orders of the court were to dismiss the appeal against sentence, thereby affirming the original sentence imposed on the respondent. The court's decision underscored the importance of considering both the gravity of the offence and the personal circumstances of the offender when determining an appropriate sentence. The court also highlighted the significance of the prosecutor's position at the plea stage in exercising the residual discretion to dismiss an appeal.

Orders