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DPP v Amaral

DPP v Amaral

Case [2020] VSCA 290 24 November 2020

Appeal

Sentence

Criminal Liability

Aggravated & Exemplary Damages

Breach of Trust

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0016

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JASON AMARAL (a pseudonym)[1]	Respondent

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

S EAPCR 2020 0046

JASON AMARAL (a pseudonym)	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	MAXWELL P, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 October 2020
DATE OF JUDGMENT:	24 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 290
JUDGMENT APPEALED FROM:	[2019] VCC 2178 (Judge Lyon)

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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 – Sentenced to 6 years’ imprisonment – Whether manifestly excessive – Error in indictment – Incorrect maximum applied – Judge misinformed by counsel about applicability of standard sentence scheme – Crown concession of error – Appeal allowed – Indictment amended – Resentenced to 4 years’ imprisonment – Crimes Act 1958 ss 45(1), 49B(1), Criminal Procedure Act 2009 s 165.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Sexual penetration of child under 16 (3 charges) – Serious offending against niece – Victim aged between 12 and 15 – Offending resulted in pregnancy and birth of child – Total effective sentence 8 years and 10 months’ imprisonment, non-parole period 5 years 8 months – Whether manifestly inadequate – Pregnancy as aggravating factor – Severe impact on victim – Breach of trust and responsibility – Persistent offending – Standard sentence (6 years) applicable to two charges – Appeal allowed – Resentenced to 10 years and 6 months’ imprisonment, non-parole period 7 years 6 months – Crimes Act 1958 s 45(1), Sentencing Act1991 s 5A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Boyce QC with Mr D Glynn	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent/Applicant	Ms S Flynn QC with Mr N Howard	Victoria Legal Aid

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MAXWELL P
T FORREST JA
WEINBERG JA:

Summary

The respondent (A) pleaded guilty to three charges of sexual penetration of a child under 16. The victim of the offending was his niece (T), who was aged between 12 and 15 during the period of the offending.

A was sentenced to 6 years’ imprisonment on two of the charges and 6 years and 10 months’ imprisonment on the third. With orders for cumulation, the total effective sentence was 8 years and 10 months’ imprisonment. A non-parole period of 5 years and 8 months was fixed.

The Director of Public Prosecutions now appeals against the sentences imposed on the ground of manifest inadequacy. For reasons which follow, we would uphold that appeal. This was very serious offending, made all the more so by the fact that one of the charged acts resulted in T becoming pregnant and carrying her child to term. Significantly higher sentences were called for.

The resentencing exercise is more complicated than usual because of…

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 Amaral

Details

AGLC: Director of Public Prosecutions v JASON Amaral (a pseudonym)[1] [2020] VSCA 290
Case: [2020] VSCA 290
Decision Date: 24 November 2020

CaseChat Overview and Summary

The appeal by the Director of Public Prosecutions against the sentence of the respondent, Amaral, concerns the severity of the sentence for sexual penetration of a child under the age of 16. Amaral was convicted of three counts of the offence, which involved his niece, aged between 12 and 15, and resulted in a pregnancy and the birth of a child. Initially sentenced to six years’ imprisonment, the court was required to determine whether the sentence was manifestly excessive, taking into account an error in the indictment and an incorrect maximum penalty applied. Additionally, the court was tasked with reviewing the Crown's appeal against the sentence's adequacy, considering the serious nature of the offences, the severe impact on the victim, and the breach of trust involved.

The court examined the legal issues surrounding the sentence's adequacy, including the impact of the pregnancy as an aggravating factor and the persistent nature of the offending. The initial sentencing judge had been misinformed by counsel about the applicability of the standard sentence scheme. This error was compounded by the incorrect maximum penalty applied due to an error in the indictment. The Crown conceded the error in the indictment and the misinformation provided to the sentencing judge. The court found that the original sentence of six years was indeed manifestly excessive, leading to the allowance of the appeal and the amendment of the indictment. Consequently, Amaral was resentenced to four years’ imprisonment.

In addition to the appeal by the Director of Public Prosecutions, the Crown also appealed against the adequacy of the sentence. The Crown argued that the total effective sentence of eight years and ten months, with a non-parole period of five years and eight months, was manifestly inadequate. The court agreed, taking into account the severe impact of the offences on the victim, the breach of trust, and the persistent nature of the offending. The court applied the standard sentence of six years to two of the charges and sentenced Amaral to a total of ten years and six months’ imprisonment, with a non-parole period of seven years and six months. The court considered the pregnancy resulting from the offences as an aggravating factor and the persistent offending as significant factors in determining the appropriate sentence.

The final orders of the court were to amend the indictment to correct the error in the maximum penalty and to resentence Amaral to a total of ten years and six months’ imprisonment, with a non-parole period of seven years and six months. The court's decision underscored the importance of accurate legal advice and the correct application of sentencing laws in ensuring that sentences are just and proportionate to the gravity of the offences committed.

Orders