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DPP v Clunie

DPP v Clunie

Case [2016] VSCA 216 14 September 2016

Appeal

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0192

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ETHAN CLUNIE (A PSEUDONYM)[1]	Respondent

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

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JUDGES:	MAXWELL ACJ, OSBORN and SANTAMARIA JJA
WHERE HELD:	GEELONG
DATE OF HEARING:	20 June 2016
DATE OF JUDGMENT:	14 September 2016 (MELBOURNE)
MEDIUM NEUTRAL CITATION:	[2016] VSCA 216
JUDGMENT APPEALED FROM:	DPP v [Clunie] (Unreported, County Court of Victoria, Judge Dean, 16 September 2015)

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CRIMINAL LAW – Appeal – Sentencing – Director’s appeal – Four charges of indecent act with a child under 16, four charges of sexual penetration of a child under 16, one charge of knowingly possess child pornography – Two victims – Respondent the step-grandfather of the victims – Original total effective sentence of 6 years’ imprisonment – Approach to totality – Sentencing judge moderated and cumulated individual sentences – Sentence manifestly inadequate – Respondent resentenced to 8 years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr T Kassimatis with Ms A I Burchill	Dwyer Robinson

MAXWELL ACJ:
OSBORN JA:
SANTAMARIA JA:

On 16 September 2015, the respondent pleaded guilty to four charges of indecent act with a child under the age of 16 (charges 1, 2, 3 and 7), four charges of sexual penetration of a child under the age of 16 (charges 4, 5, 6, and 8) and one charge of knowingly possessing child pornography (charge 9).

Following pleas of guilty, he was convicted and sentenced in the County Court by his Honour Judge Dean as follows:

Charge on

Indictment
Offence Maximum Sentence Cumulation

1. Indecent Act with a child under 16: s 47(1) Crimes Act 1958 10 years 2 years 3 months

2. Indecent Act with a child under 16: s 47(1) Crimes Act 1958 10 years 6 months 1 month

3. Indecent Act with a child under 16: s 47(1) Crimes Act 1958 10 years 2 years 6 months

4. Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958 25 years 3 years 6 months

5. Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958 25 years 3 years 6 months

6. Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958 25 years 33 months 6 months

7. Indecent Act with a child under 16: s 47(1) Crimes Act 1958 10 years 9 months 1 month

8. Sexual penetration of a child under 16: ss 45(1) and (2)(b) of the Crimes Act 1958 15 years 42 months Base

9. Knowingly possess child pornography: s 70(1) Crimes Act 1958 5 years 12 months 1 month

Total Effective Sentence 6 years’ imprisonment

Non-Parole Period 4 years

Section 6AAA…

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Indecent Act with a child under 16: s 47(1) Crimes Act 1958	10 years	2 years	3 months
2.	Indecent Act with a child under 16: s 47(1) Crimes Act 1958	10 years	6 months	1 month
3.	Indecent Act with a child under 16: s 47(1) Crimes Act 1958	10 years	2 years	6 months
4.	Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958	25 years	3 years	6 months
5.	Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958	25 years	3 years	6 months
6.	Sexual penetration of a child under 16: ss 45(1) and (2)(a) of the Crimes Act 1958	25 years	33 months	6 months
7.	Indecent Act with a child under 16: s 47(1) Crimes Act 1958	10 years	9 months	1 month
8.	Sexual penetration of a child under 16: ss 45(1) and (2)(b) of the Crimes Act 1958	15 years	42 months	Base
9.	Knowingly possess child pornography: s 70(1) Crimes Act 1958	5 years	12 months	1 month
Total Effective Sentence	6 years’ imprisonment
Non-Parole Period	4 years
Section 6AAA…

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 Clunie

Details

AGLC: DPP v Clunie [2016] VSCA 216
Case: [2016] VSCA 216
Decision Date: 14 September 2016 (MELBOURNE)

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Clunie, the Director of Public Prosecutions appealed the sentence imposed on Clunie, who was convicted of multiple charges related to sexual offences against children, including indecent acts, sexual penetration, and possession of child pornography. The victims were related to Clunie as his step-grandchildren. The original sentence imposed by the sentencing judge was a total effective sentence of six years’ imprisonment. The Director of Public Prosecutions argued that the sentence was manifestly inadequate.

The primary legal issue before the court was whether the original sentence imposed was manifestly inadequate. The court had to consider the principles of totality in sentencing, the nature and gravity of the offences, and the impact on the victims. The Director of Public Prosecutions submitted that the sentence did not adequately reflect the seriousness of the offences and the need for deterrence and denunciation.

The court found that the original sentence was manifestly inadequate. It held that the sentencing judge had moderated and cumulated the individual sentences, which meant that the overall sentence did not reflect the totality of the offending. The court considered that the offences were of significant gravity, given their nature, the vulnerability of the victims, and the position of trust occupied by Clunie. The court resentenced Clunie to a total effective sentence of eight years’ imprisonment, with a non-parole period of five years and three months. This sentence better reflected the seriousness of the offences and the need to protect the community.

Orders