CRIMINAL LAW – APPEAL - SENTENCE – Director’s appeal – Sexual penetration of child under 10 – Indecent act with a child under 10 – Victims three and six respectively – Total effective sentence of two years six months, with a non-parole period of 15 months – Whether manifestly inadequate – Significance of admissions – Significance of representative counts – Sentencing range – Current sentencing practices – Appeal allowed – Resentenced to six years’ imprisonment and a non-parole period of four years.
CRIMINAL LAW – SENTENCE – Sexual penetration of child under 10 – Adequacy of current sentencing practices – Whether consistent with statutory maximum – Discretion to impose a sentence higher than current practice – R v AB (No 2) (2008) 18 VR 391 – Sentencing Act 1991 (Vic) s 5(2)(a), (b).
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr J D McArdle QC with Dr S B McNicol
Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent
Mr P F Tehan QC with Mr C B Boyce
Cahills
MAXWELL P REDLICH JA
ROBSON AJA:
This appeal by the Director of Public Prosecutions concerns sentences imposed for serious sexual offences against two very young girls, one aged six, the other aged three. The respondent (‘CPD’) pleaded guilty to two counts of sexual penetration of the three year old girl and two counts of sexual penetration of the year old. One of the sexual penetration counts in each case was a representative count. CPD also pleaded guilty to a representative count of committing an indecent act with the six year old girl, in that he made her touch his penis. He also pleaded guilty to one representative count of committing an indecent act with the three year old girl, in that he touched her vagina.
The maximum penalty for sexual penetration of a child under 10 is 25 years’ imprisonment. The maximum penalty for committing an indecent act with a child under 16 is 10 years’ imprisonment. The total effective sentence imposed for all six offences was two years and six months, and the non-parole period fixed was one year and three months.[1]
[1]The individual sentences and the orders for cumulation are set out in Table B below.
The Director has appealed to this Court on the ground that the sentence is manifestly inadequate. He challenges the individual sentences for the separate counts, the orders for cumulation, the total effective sentence and the non-parole period.
Summary of conclusions
In our view, for reasons which follow, the sentence imposed on CPD was manifestly inadequate, to the extent that error of principle is disclosed.[2] The appeal must therefore be allowed.
[2]See Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R…
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.
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AGLC
DPP v CPD [2009] VSCA 114
Case
[2009] VSCA 114
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions v CPD arose from serious criminal charges against the defendant, who was convicted of sexual penetration of a child under 10 years of age and an indecent act with a child under 10 years of age. The victims in this case were three and six years old, respectively. The matter was heard in the Court of Appeal in Victoria, where the Director of Public Prosecutions appealed against the sentence imposed on the defendant.
The primary legal issue before the court was whether the sentence of two years and six months, with a non-parole period of 15 months, was manifestly inadequate. The court was required to consider the significance of the admissions made by the defendant, the representative counts of the charges, the sentencing range, and current sentencing practices. The court also had to assess whether the sentence was consistent with the statutory maximum and whether there was discretion to impose a sentence higher than current practice.
The Court of Appeal found that the sentence was manifestly inadequate. The court emphasised the gravity of the offences committed against very young children and the importance of ensuring public protection. The court held that the sentence did not appropriately reflect the seriousness of the crimes or deter the defendant and others from engaging in similar conduct. In reaching its decision, the court referred to R v AB (No 2) and the Sentencing Act 1991 (Vic). Consequently, the appeal was allowed, and the defendant was resentenced to six years' imprisonment with a non-parole period of four years.
The final orders of the court were that the sentence of two years and six months, with a non-parole period of 15 months, was set aside and replaced with a sentence of six years' imprisonment and a non-parole period of four years. This resentence aimed to appropriately reflect the gravity of the offences and serve as a sufficient deterrent against similar conduct in the future.