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DPP v Chatterton

DPP v Chatterton

Case [2014] VSCA 1 4 February 2014

Sentencing

Joint Commonwealth and State Directors’ appeal

Possession of child pornography

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0232

DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)
	Appellant
v
BRETT CHATTERTON	Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
	Appellant
v
BRETT CHATTERTON	Respondent

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JUDGES	WEINBERG, WHELAN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 January 2014
DATE OF JUDGMENT	4 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 1
JUDGMENT APPEALED FROM	DPP v Chatterton (Unreported, County Court of Victoria, Judge Gaynor, 7 November 2013)

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CRIMINAL LAW — Sentencing — Joint Commonwealth and State Directors’ appeal — Commonwealth and State sexual offences against boys aged 13 to 15 — Using carriage service to transmit indecent communications — Using carriage service to procure child under 16 — Multiple counts of sexual penetration of child under 16 — Possession of child pornography— Sentenced to three months’ imprisonment on each charge wholly concurrent and three year Community Corrections Order — Offender already subject to Community Based Order and suspended sentence after serving three months’ imprisonment for child sex offences — Whether sentencing judge erred in finding respondent to have reasonable prospects of rehabilitation — Whether, assuming specific error shown, without more, sufficient to allow Directors’ appeal — Whether Director’s appeal can succeed without establishing manifest inadequacy — Appeal allowed — Sentences manifestly inadequate — Offender re-sentenced to four years’ imprisonment with non-parole period of two years and six months —Criminal Procedure Act 2009 s 287 and 289 considered.

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Appearances:	Counsel	Solicitors
For the Appellants	Mr J R Champion SC with Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr T Kassimatis with Mr D Sala	Valos Black & Associates

WEINBERG JA
WHELAN JA
PRIEST JA:

On 17 September 2013 the respondent pleaded guilty, in the County Court at Melbourne, to a series of sexual offences, all of them involving boys. He was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Using a carriage service to transmit indecent communication to person under 16 [Criminal Code 1995 (Cth) s 474.27A]	7 years [Criminal Code 1995 (Cth) s 474.27A(1)]	3 months’ imprisonment and 3 year Community Corrections Order (CCO)	Concurrent
2	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]	10 years [Crimes Act 1958 (Vic) s 45(2)]	3 months’ imprisonment and 3 year CCO	Concurrent
3	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]	10 years [Crimes Act 1958 (Vic) s 45(2)]	3 months’ imprisonment and 3 year CCO	Concurrent
4	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]	10 years [Crimes Act 1958 (Vic) s 45(2)]	3 months’ imprisonment and 3 year CCO	Concurrent
5	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s 45]	10 years [Crimes Act 1958 (Vic) s 45(2)]	3 months’ imprisonment and 3 year CCO	Concurrent
6	Sexual penetration of a child under 16 [Crimes Act 1958 (Vic) s…

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 Chatterton

Details

AGLC: DPP v Chatterton [2014] VSCA 1
Case: [2014] VSCA 1
Decision Date: 4 February 2014

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Chatterton was heard in the Court of Appeal, which involved an appeal by the joint Commonwealth and State Directors against the sentencing of Chatterton. Chatterton had been found guilty of multiple serious sexual offences against boys aged between 13 and 15. The offences included using a carriage service to transmit indecent communications, using a carriage service to procure a child under 16, multiple counts of sexual penetration of a child under 16, and possession of child pornography. Chatterton was sentenced to three months' imprisonment on each charge, all served concurrently, and a three-year Community Corrections Order. This sentence followed a previous three-month imprisonment sentence for similar offences, which also included a suspended sentence and a Community Based Order.

The legal issues before the court were whether the sentencing judge erred in finding Chatterton to have reasonable prospects of rehabilitation and whether, assuming a specific error was shown, it was sufficient for the Directors' appeal without establishing manifest inadequacy. The court had to consider the principles of sentencing for serious sexual offences and the appropriateness of the sentence imposed in light of the offender's history and the nature of the crimes committed. The court also had to determine whether the appeal could succeed without establishing manifest inadequacy of the sentence.

The court held that the sentencing judge erred in finding Chatterton to have reasonable prospects of rehabilitation, a finding that was not supported by the evidence. The court found that the sentence imposed was manifestly inadequate given the gravity of the offences and the offender's previous history. The court considered sections 287 and 289 of the Criminal Procedure Act 2009, which provide for appeals by the Director in cases where the sentence is manifestly inadequate. The appeal was allowed, and Chatterton was re-sentenced to four years' imprisonment with a non-parole period of two years and six months. The court emphasised the need for sentences that reflect the seriousness of sexual offences against children and the importance of rehabilitation and deterrence.

Orders