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DPP v Conos

DPP v Conos

Case [2021] VSCA 367 22 December 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0026

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)	Appellant
v
THEODORE CONOS	Respondent

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JUDGES:	MAXWELL P, KAYE and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2021
DATE OF JUDGMENT:	22 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 367
JUDGMENT APPEALED FROM:	[2021] VCC 156 (Judge Quin)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Appeals by State and Commonwealth Directors – Sexual penetration of child under 16 – Grooming – Use of carriage service to groom and to transmit indecent communications – Three 15-year-old victims – Rolled-up charges – Total effective sentence 6 years and 6 months’ imprisonment with 4 years and 6 months non-parole period – Whether manifestly inadequate – Very serious offending – Very high moral culpability – Residual discretion not enlivened – Appeal allowed – Resentenced to 10 years’ imprisonment with 7 years non-parole period – Clarkson v The Queen (2011) 32 VR 361, Director of Public Prosecutions v Polat (a pseudonym) [2020] VSCA 174 applied – Crimes Act 1958 ss 49B(1), 49M(1), Drugs, Poisons and Controlled Substances Act 1981 ss 71B(1)(b), 73(1), Criminal CodeAct 1995 (Cth) ss 474.27(1), 474.27A(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D I Piekusis QC with Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr C Carr SC with Mr J R Murphy	Danaher Moulton

MAXWELL P
KAYE JA
SIFRIS JA:

Summary

As is now widely recognised, the perceived anonymity of the internet has greatly facilitated the exploitation of children for sexual purposes. In some cases, both the grooming and the sexual activity take place online, the offender deriving sexual satisfaction from observing the victim performing sexual acts to the offender’s instructions.[1]
[1]See, eg, DPP v Meharry [2017] VSCA 387.

In other cases — of which the present is an example — the online grooming and indecent communication lead to ‘contact offending’, that is, physical sexual abuse of the child by the offender. In this case, the respondent (‘TC’) groomed three 15-year-old girls, through increasingly explicit online communications, and then committed multiple offences of sexual penetration against each of them.[2] His fourth ‘victim’ was an undercover operative, the offending in that instance being confined to online grooming and indecent communication.
[2]The use of initials for the respondent is for ease of reference only.

The offending spanned a period of almost two years, when TC was aged between 25 and 27. In relation to each of the first two victims, he pleaded guilty to sexual penetration of a child under 16. In each case, he offended on two different occasions. In relation to the third victim, TC pleaded guilty to two rolled-up charges of sexual penetration of a child under 16, involving four occasions and five occasions respectively, as well as to charges of grooming, transmitting indecent communications and supplying a drug of dependence. In relation to the undercover operative, he pleaded guilty to the Commonwealth offences 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 Conos

Details

AGLC: Director of Public Prosecutions v Conos [2021] VSCA 367
Case: [2021] VSCA 367
Decision Date: 22 December 2021

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the defendant in the County Court, arguing that the sentence was manifestly inadequate. The defendant had been found guilty of multiple charges of sexual penetration of children under 16, grooming, and using a carriage service to transmit indecent communications. The victims were three 15-year-old girls. The County Court had imposed a total effective sentence of 6 years and 6 months imprisonment with a non-parole period of 4 years and 6 months. The court was required to determine whether the sentence was manifestly inadequate, taking into account the gravity of the offending, the defendant's culpability, and the need for deterrence and denunciation.

The Court of Appeal found that the defendant's offending was of a very serious nature and involved a high degree of moral culpability. The defendant had groomed and abused three teenage girls, and used a carriage service to facilitate the offending. The court held that the County Court had failed to properly consider the totality of the offending and the need for an appropriate sentence that reflected the seriousness of the crimes. The Court of Appeal applied the principles set out in Clarkson v The Queen and Director of Public Prosecutions v Polat, and found that the sentence was manifestly inadequate. The appeal was allowed, and the defendant was resentenced to 10 years imprisonment with a non-parole period of 7 years.

The Court of Appeal found that the original sentence did not adequately reflect the seriousness of the defendant's offending, and did not provide sufficient deterrence or denunciation. The court held that the defendant's offending involved a significant breach of community standards and was of a very serious nature. The court also noted that the defendant's offending had a significant impact on the victims, who were vulnerable teenage girls. The Court of Appeal exercised its residual discretion and resentenced the defendant to 10 years imprisonment with a non-parole period of 7 years. The defendant's appeal was dismissed, and the sentence imposed by the Court of Appeal was upheld.

Orders