DPP v CPD

Case [2009] VSCA 114


SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 661 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

v

CPD

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JUDGES:

MAXWELL P, REDLICH JA and ROBSON AJA

WHERE HELD:

SHEPPARTON

DATE OF HEARING:

20 October 2008

DATE OF JUDGMENT:

28 May 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 114

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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:

  1. 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. 

  1. 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.

  1. 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

  1. 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…

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DPP v CPD [2009] VSCA 114
Case
[2009] VSCA 114
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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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