DPP v Brown - [2009] VSCA 314

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 722 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

JEFFERY ALAN BROWN

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JUDGES	MAXWELL P, HARPER JA AND WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 NOVEMBER 2009
DATE OF JUDGMENT	21 DECEMBER 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 314
JUDGMENT APPEALED FROM	R v Brown (Unreported, County Court of Victoria, Judge Cotterell, 11 June 2009)

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CRIMINAL LAW – Appeal - Sentencing – Director’s appeal - Indecent assault and rape – Plea of guilty – Total effective sentence two years and nine months with two years suspended – Respondent in position of trust – Victims both children under 13 years - Whether manifest inadequacy – Appeal upheld.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Trapnell SC	Craig Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr O P Holdenson QC	Robert Stary Lawyers

MAXWELL P:
HARPER JA:
WILLIAMS AJA:

Following pleas of guilty, the respondent was on 20 May 2009 convicted in the County Court of four counts of indecent assault and one count of rape. Each offence was committed in 1987 – that is, 22 years ago. The maximum penalty for indecent assault was then five years’ imprisonment; it is now 10 years. The maximum penalty for rape has increased, proportionately, even more. It was then 10 years’ imprisonment. Now it is 25 years.

On 11 June 2009, the respondent was sentenced on count 1 (the first of the four counts of indecent assault) to nine months’ imprisonment; on count 2 (the count of rape) to 27 months’ imprisonment; on count 3, to nine months’ imprisonment; on count 4, to 12 months’ imprisonment; and on count 5, to six months’ imprisonment. The sentencing judge directed that one month of the sentence imposed on counts 1, 3 and 4, and 3 months of the sentence imposed on count 5, be served cumulatively upon the sentence imposed on count 2 and upon each other. The total effective sentence imposed was therefore two years and nine months’ imprisonment. The judge ordered that two years of that sentence be suspended for two years. The respondent was therefore required to serve nine months in custody. In respect of counts 3, 4 and 5 he was sentenced as a serious sexual offender, and was registered pursuant to s 34 of the Sex Offenders Registration Act 2004 (Vic) and ordered to report for life. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), her Honour noted that she would have imposed a sentence of four years’ imprisonment (two and a half years of which would have been wholly suspended for two years) but for the plea of guilty.

By notice dated 6 July 2009, the Director of Public Prosecutions appeals against each of these sentences, including the total effective sentence and the direction that part of it be suspended. In each case, the single ground is that the sentence in question is manifestly inadequate in all the circumstances. According to the particulars contained…

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 Brown

Details

AGLC: DPP v Brown [2009] VSCA 314
Case: [2009] VSCA 314
Decision Date: 21 DECEMBER 2009

CaseChat Overview and Summary

The appeal before the court involves the Director of Public Prosecutions (DPP) contesting the sentencing of Brown, who had pleaded guilty to multiple counts of indecent assault and rape involving two children under the age of 13. The sentencing judge imposed a total effective sentence of two years and nine months, with two years suspended. The court's task was to determine whether the original sentence was manifestly inadequate, thereby warranting an appeal and potential increase in sentence.

The central legal issue revolved around whether the sentence imposed by the lower court was manifestly inadequate, considering the severity of the crimes committed by Brown and his position of trust over the victims. The appeal hinged on whether the punishment met the minimum standards required by law, given the gravity of the offences and the vulnerability of the victims. The court needed to assess if the sentence imposed adequately reflected the seriousness of the crimes and the need for deterrence and denunciation.

The court held that the sentence was indeed manifestly inadequate. It was noted that Brown had exploited his position of trust, committing heinous crimes against two young children, which called for a stronger response in terms of punishment. The court emphasised the importance of sending a clear message that such crimes, especially those involving children, would not be tolerated and would be met with severe consequences. Consequently, the appeal was upheld, and the case was remitted to the lower court for reconsideration of the sentence. The court's decision underscored the necessity for sentences to appropriately reflect the gravity of crimes against children and those committed by individuals in positions of trust.

Orders