DPP v CP - [2008] VSCA 215

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 157 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
CP

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JUDGES:	KELLAM, DODDS-STREETON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2008
DATE OF JUDGMENT:	30 October 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 215

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Criminal Law – Crown appeal – Respondent pleaded guilty to six counts of indecent assault on young girls – Sentenced to an effective term of 27 months’ imprisonment – Sentence wholly suspended – Whether ‘extraordinary’ steps taken by respondent to rehabilitate himself justified suspension of entire sentence – Appeal allowed – Sentencing judge’s focus on rehabilitation overrode all other sentencing considerations – Respondent re-sentenced – Respondent required to serve 12 months actual custodial term

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Claire M Quin	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent	Ms Jane A Dixon SC and Mr Michael D Stanton	Michael Benjamin & Associates

KELLAM JA
DODDS-STREETON JA

WEINBERG JA:

On 13 March 2008 the respondent pleaded guilty in the County Court at Melbourne to six counts of indecent assault. The charges were brought pursuant to s 44(1) of the Crimes Act 1958, as the section then stood. Each offence carried a maximum penalty of five years’ imprisonment.

The respondent was sentenced as follows:

Count 1Twelve months;
Count 2Twelve months (four months cumulative);
Count 3Twelve months (four months cumulative);
Count 4Twelve months (four months cumulative);
Count 5Nine months (three months cumulative);
Count 6Twelve-month community-based order.

The total effective sentence was 27 months’ imprisonment. The sentencing judge directed that the whole of that sentence be suspended for a period of three years.

The Director of Public Prosecutions has appealed against the individual sentences imposed on counts 1 to 5 and the decision to wholly suspend them. He also challenges the decision to impose a community based order in respect of count 6.

The circumstances surrounding these offences may be briefly stated. They were committed between late December 1984 and approximately March 1985. The respondent was then aged 27. The victims named in counts 1 to 5, RB and VB, were the respondent’s two nieces, their mother being the respondent’s sister. They were aged respectively 12 and 10. Count 6 involved the respondent’s daughter who was, at the relevant time, about 18 months of age.

The respondent’s sister, and her four children, moved into the respondent’s house on Boxing Day 1984. After about a week, his sister moved out. She left her two daughters, the victims of these offences, in the care of the respondent until March 1985, at which time they moved into rental accommodation with their mother.

Counts 1 to 4 related to RB. The offending in relation to that count took place while the respondent and his wife were giving a dinner party. The respondent went into RB’s bedroom, leaned over, and kissed her. Subsequently, when everyone had gone home, he returned to her room, performed oral sex upon her, and digitally penetrated her.

Count 2 involved…

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 CP

Details

AGLC: Director of Public Prosecutions v C P [2008] VSCA 215
Case: [2008] VSCA 215
Decision Date: 30 October 2008

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on CP, who had pleaded guilty to six counts of indecent assault on young girls. The case was heard in the County Court of Victoria, which sentenced CP to an effective term of 27 months’ imprisonment, wholly suspended. The appeal centred on whether the extraordinary steps taken by CP to rehabilitate himself justified the suspension of his entire sentence. The County Court had determined that these steps warranted the suspension of CP's sentence. The Court of Appeal found that the County Court had placed too much emphasis on CP's rehabilitation, to the exclusion of other sentencing considerations. The Court of Appeal held that the County Court had erred in its assessment of the seriousness of the offences and the need for denunciation and deterrence. Consequently, the Court allowed the appeal, quashed the original sentence, and re-sentenced CP to a term of 27 months’ imprisonment, with 15 months to be served as an actual custodial term. The appeal was successful, and CP was required to serve 12 months in actual custody.

Orders