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DPP v Cramp

DPP v Cramp

Case [2019] VSCA 174 6 August 2019

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2019 0106

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KIMBERLEY JOYCE CRAMP	Respondent

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JUDGES:	PRIEST, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2019
DATE OF JUDGMENT:	6 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 174
SENTENCE APPEALED FROM:	DPP v Cramp [2019] VCC 570 (Judge Smith)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape (3 representative charges), false imprisonment (2 charges) and theft (2 charges) – Respondent intellectually disabled Aboriginal female with cerebral palsy from difficult background – Sentenced to a conditioned community correction order (‘CCO’) of two years’ duration – Whether manifestly inadequate – Principles in R v Verdins (2007) 16 VR 269 and Muldrock v The Queen (2011) 244 CLR 120 applicable – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms F Dalziel QC with Ms G A Coghlan	Mr John Cain, Solicitor for Public Prosecutions
For the Respondent	Mr P Morrissey SC with Mr M Kozlowski	Ann Valos Criminal Law Pty Ltd

PRIEST JA
NIALL JA
WEINBERG JA:

The respondent

Kimberley Joyce Cramp, the respondent, is a 29 year old[1] Aboriginal woman with an IQ of 63. She was born with cerebral palsy, resulting in her having some 29 surgical operations before her eighteenth birthday, often being rendered wheelchair-bound as a result. Her cerebral palsy continues to affect her to the extent that there are days that she cannot get out of bed. The respondent has been on a Disability Support Pension since the age of 16, her carer in recent years being her partner (and co-offender) Alexander Trewin (‘Trewin’), who relevantly receives a Carer’s Allowance. She meets the DSM-5[2] criteria for intellectual disability and persistent depressive disorder (dysthymia) with anxious distress.
[1]Her date of birth is 12 July 1990.
[2]Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association.

As a child, the respondent attended Corowa Primary School to Grade 5, requiring the assistance of an integration aide. She completed Grade 6 at Belvour Special School in West Wodonga, which provides an education for five to 18 year old students having mild to severe intellectual disabilities. With further assistance from integration aides, she attended Wodonga Secondary College (although she was held back at Year 8 and 9 levels, rather than progressing to Year 10). During her time at secondary school, the respondent was persistently teased and bullied because of her physical disability. She left school in 2008, when aged 17 years.

The respondent has given birth to three sons (in 2008, 2012 and 2016) — Trewin being the father of her third son — and a daughter (in 2010). All of her children have been removed from her care. She has supervised access with her three youngest children, and has contact with her eldest son on special occasions (depending on his foster parents’ willingness). It appears that the respondent prefers for her children to be in State care.

Charges, sentence and ground…

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 Cramp

Details

AGLC: DPP v Cramp [2019] VSCA 174
Case: [2019] VSCA 174
Decision Date: 6 August 2019

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Cramp concerned a woman, referred to as the respondent, who had been convicted of multiple criminal offences. The respondent, who is an intellectually disabled Aboriginal female with cerebral palsy, had a difficult background and was sentenced to a conditioned community correction order of two years. The Director of Public Prosecutions appealed the sentence on the basis that it was manifestly inadequate. The appeal was heard by the court of appeal, which had to determine whether the sentence was manifestly inadequate under the principles set out in R v Verdins and Muldrock v The Queen.

The court examined the principles established in the cited cases, which required the sentence to be proportionate to the seriousness of the offences, taking into account the offender’s personal circumstances. The court noted the severity of the offences, which included rape, false imprisonment, and theft, and considered the respondent's intellectual disability, cerebral palsy, and difficult background. The court also reviewed the reasoning of the primary judge, who had imposed the sentence, and evaluated whether the sentence was manifestly inadequate. The court found that the primary judge had appropriately considered the relevant principles and the circumstances of the case.

After careful consideration, the court determined that the sentence imposed by the primary judge was not manifestly inadequate. The court found that the primary judge had appropriately balanced the need for punishment and deterrence with the respondent's personal circumstances. The appeal was therefore dismissed, and the original sentence of a conditioned community correction order of two years was upheld.

No further orders were made by the court. The decision in this case serves as a reminder of the importance of considering the individual circumstances of offenders when sentencing, particularly in cases involving vulnerable individuals. The principles established in R v Verdins and Muldrock v The Queen continue to be relevant in such cases, and the court’s decision in this case provides further guidance on how these principles should be applied.

Orders