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DPP v Davis

DPP v Davis

Case [2017] VSCA 341 23 November 2017

Appeal

Sentencing

Expert Evidence

Mental Functioning of Offenders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0124

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
CHRISTOPHER IAN DAVIS	Respondent

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JUDGES:	MAXWELL P, TATE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2017
DATE OF JUDGMENT:	23 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 341
JUDGMENT APPEALED FROM:	DPP v Davis (Unreported, County Court of Victoria, Judge Cotterell, 18 May 2017)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape (4 charges) – Sleeping victim – Offender heavily intoxicated – Mitigating effect of intellectual disability, mental illness – Sentenced to 8 months’ imprisonment and 3-year community correction order – Whether manifestly inadequate – Whether Verdins principles applicable – Whether ‘realistic connection’ between offender’s condition and offending – Offending purposeful, deliberate and persistent – Causal significance of intoxication – Undue weight given to mitigating factors – Sentence not commensurate with gravity of offending – Whether residual discretion should be exercised – Appeal allowed – Resentenced to 4 years and 6 months’ imprisonment, with non-parole period of 3 years and 3 months – Verdins v The Queen (2007) 16 VR 269, Hasan v The Queen (2010) 31 VR 28 applied.

CRIMINAL LAW – Sentencing – Sentencing hearings – Expert evidence – Mental functioning of offenders – Expert reports relied on by defence – No objection by prosecution – Prosecutor later sought leave to cross-examine expert – Importance of cross-examination where prosecutor disputes expert opinions or their factual foundations – Need for timely service of expert reports – County Court of Victoria, Practice Note PNCR 1–2017 — Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, 1 July 2017 [8.1].

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C B Boyce SC with Ms S Flynn	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr P Tehan QC with Mr T Lynch	Mr B Birrell

MAXWELL P
TATE JA
BEALE AJA:

Summary

On 16 February 2017 Christopher Davis (‘CD’) pleaded guilty to four charges of rape. He was sentenced on 18 May 2017 as follows:[1]
[1]The judge did not make a declaration for the purposes of s 6AAA of the Sentencing Act 1991.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Rape [Crimes Act 1958 s 38(1)] 25y 5m Base

2 Rape 25y 5m 1m

3 Rape 25y 5m 1m

4 Rape 25y 5m 1m

Additional order: 3y CCO

Total Effective Sentence: 8m + 3y CCO

Non-Parole Period: N/A

Pre-sentence Detention Declared: Nil

On 15 June 2017, the Director of Public Prosecutions filed a Notice of Appeal against the sentence. The only ground of appeal was the ground on which a Director’s appeal invariably rests, namely, that the sentences imposed were manifestly inadequate. As this Court explained in Director of Public Prosecutions v Karazisis,[2] success on this ground depends on showing that it was not reasonably open to the sentencing judge to impose the sentence which she did if proper weight had been given to all 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 Davis

Details

AGLC: DPP v Davis [2017] VSCA 341
Case: [2017] VSCA 341
Decision Date: 23 November 2017

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, Davis, who had been convicted of four counts of rape. Davis, who was heavily intoxicated at the time of the offending, had raped four sleeping victims. Davis had an intellectual disability and was suffering from a mental illness at the time of sentencing. The County Court of Victoria had sentenced Davis to 8 months’ imprisonment and a 3-year community correction order, which the DPP argued was manifestly inadequate.

The legal issues in the appeal centred on whether the sentence imposed was manifestly inadequate and whether the principles from Verdins v The Queen and Hasan v The Queen applied. The court also needed to consider whether there was a 'realistic connection' between Davis’s condition and his offending, and whether the intoxication should be considered a mitigating factor. The court had to determine if the sentence was commensurate with the gravity of the offending, and whether any residual discretion should be exercised.

The Court of Appeal held that the sentence was manifestly inadequate. It found that Davis's intellectual disability and mental illness did not have a realistic connection to his offending, as the offending was purposeful, deliberate, and persistent. The court concluded that undue weight had been given to the mitigating factors, and that the intoxication was not a significant mitigating factor. The sentence did not reflect the gravity of the offending. The court applied Verdins and Hasan and exercised its residual discretion, resentencing Davis to 4 years and 6 months’ imprisonment, with a non-parole period of 3 years and 3 months.

In relation to the prosecution's cross-examination of the expert, the Court of Appeal noted the importance of cross-examination where the prosecutor disputes the expert opinions or their factual foundations. The court emphasised the need for timely service of expert reports, as per the County Court of Victoria, Practice Note PNCR 1–2017.

Orders