DPP v BW - [2007] VSCA 171

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 58 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS
	v
BW

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JUDGES:	BUCHANAN JA and KAYE and WHELAN AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2007
DATE OF JUDGMENT:	31 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 171

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Criminal law – Sentencing – Aggravated burglary and indecent assault – Director’s appeal – Sentences of nine months’ imprisonment on each, one wholly suspended and one to be served by intensive correction, manifestly inadequate – In the particular circumstances not so disproportionate as to warrant appellate intervention – Double jeopardy - Overarching discretion not to intervene exercised.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest QC with Mr M A Hird	Paul Vale Criminal Law

BUCHANAN JA:

I have had the considerable advantage of reading the draft reasons for judgment prepared by the other members of the Court. I agree with them as to the disposition of the appeal.

I share their Honours’ view that the individual sentences and the order that they be wholly suspended have led to manifestly inadequate punishment for crimes involving the invasion of the home and person of the victim. In the circumstances which now obtain, however, I think that a different sentence should not be passed. The respondent is at liberty. For the second time he faces the prospect of the imposition of a custodial sentence to be served immediately. The mitigating factors catalogued by the sentencing judge are exceptional. In my view it is appropriate that this Court’s discretion to dismiss the appeal, notwithstanding the inadequacy of the sentence, should be exercised.

KAYE AJA:

I accept and adopt the statement of background facts and circumstances contained in the judgment of Whelan AJA.

In this case her Honour, the sentencing judge, was faced with a particularly difficult sentencing dilemma. On the one hand, the offending to which the respondent had pleaded guilty was particularly serious. The offences of aggravated burglary, and of indecent assault, are serious criminal offences. There were a number of aggravating circumstances attaching to the commission of both offences. The victim was asleep at the time the applicant entered the house and assaulted her. The assault was disgusting and degrading. The offences occurred in what should have been the security of the victim’s own home. The applicant took advantage of his previous knowledge of the layout of that house in order to gain entry to it and to perpetrate the assault. The nature of the indecent assault was such as to debase and humiliate the victim, and as a consequence she has suffered ongoing trauma and stress.

Ordinarily, it would be expected, as a matter of course, that such offending could only result in the imposition of substantial terms of immediate imprisonment. In such cases the requirements of general deterrence, and of the adequate and proper denunciation by the Court of the offending conduct, could only…

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 BW

Details

AGLC: DPP v BW [2007] VSCA 171
Case: [2007] VSCA 171
Decision Date: 31 August 2007

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus BW, the appellant sought leave to appeal against the sentence imposed by the trial judge on the respondent, BW, who had pleaded guilty to charges of aggravated burglary and indecent assault. The Court of Appeal considered the severity and appropriateness of the sentences imposed, as well as the double jeopardy principle in the context of appellate intervention. The court was required to determine whether the sentences were manifestly inadequate and, if so, whether they were so disproportionate as to warrant appellate intervention. Furthermore, the court had to consider the overarching discretion not to intervene under the circumstances.

The court examined the nature of the crimes, the respondent's criminal history, and the principles of sentencing relevant to aggravated burglary and indecent assault. It was noted that the trial judge had exercised their discretion in imposing sentences of nine months' imprisonment on each count, with one sentence wholly suspended and the other to be served by intensive correction. The appellant argued that these sentences were manifestly inadequate and that the court should intervene. However, the court found that, while the sentences were indeed lenient, they were not so disproportionate as to warrant appellate intervention in light of the particular circumstances of the case. Additionally, the court considered the principle of double jeopardy and the overarching discretion not to intervene, ultimately deciding not to exercise its appellate jurisdiction in this instance.

BW's appeal was dismissed, and the original sentences were upheld. The court concluded that, despite the sentences being lenient, they were not so disproportionate as to warrant appellate intervention. The overarching discretion not to intervene was exercised, and the principle of double jeopardy was respected. The original sentences of nine months' imprisonment on each count, with one sentence wholly suspended and the other to be served by intensive correction, were maintained.

Orders