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DPP v Derby

DPP v Derby

Case [2007] VSCA 92 14 May 2007

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 425 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)
	v
MICHAEL JAMES DERBY

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JUDGES:	VINCENT and NEAVE JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 May 2007
DATE OF JUDGMENT:	14 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 92

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Criminal law – Sentence – Crown appeal – Arson – Sentence of 12 months’ imprisonment to be served by ICO – Manifestly inadequate – Crimes Act 1958 s567A – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest, QC With Mr R I E Willcox	Cahills

VINCENT JA:

I agree that this appeal should be allowed and that the respondent be re-sentenced as proposed by Kellam AJA. I do so for the reasons advanced by him in his judgment.

Specifically, I endorse his statements with respect to the seriousness of the respondent’s conduct and the importance of both general and specific deterrence as sentencing considerations in cases of this kind. The employment of violence, almost invariably by disappointed males, whether directed against the person or property of a former or desired partner to express anger or as a form of retribution in consequence of a relationship failure or perceived rejection simply cannot be tolerated. Insofar as they are able to do so, through the sentences handed down for such conduct, the Courts must endeavour to deter those who may be motivated to act in this way. Accordingly, those who engage in such behaviour must, save in the most unusual of circumstances, anticipate the imposition of condign punishment.

NEAVE JA:

I regret that I find it necessary to reach a different conclusion from Vincent JA and Kellam AJA. Undoubtedly arson is a very serious offence, one which often places people at the risk of death or serious injury. I agree with their Honours that denunciation and general and specific deterrence would normally require a significant period of imprisonment to be imposed for such an offence.

However, it is apparent from his reasons that the sentencing judge took account of the severity of these offences and that he weighed this very carefully against the other matters he was required to take into account under the Sentencing Act 1991. It is not contended that there is any specific error in the reasons of the learned sentencing judge.

Having regard to the restraint which this Court must exercise in deciding whether a sentence is manifestly inadequate, I would be reluctant to find that his

Honour erred. Although general and specific deterrence were important considerations in sentencing the respondent for these offences, his Honour was also entitled to give considerable weight to the personal circumstances of the applicant to which Kellam AJA refers. The respondent was a youthful first offender who was remorseful about his offending and who confessed his guilt a short time after the offences occurred. His Honour decided that the respondent’s difficulties in…

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 Derby

Details

AGLC: DPP v Derby [2007] VSCA 92
Case: [2007] VSCA 92
Decision Date: 14 May 2007

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Derby, the Supreme Court of Victoria was called upon to review a sentence imposed on the respondent for the offence of arson. The respondent had been sentenced to a term of imprisonment of 12 months, which was to be served by an Intensive Corrections Order (ICO). The Crown sought to appeal the sentence on the grounds that it was manifestly inadequate, taking into account the seriousness of the offence and the need for general deterrence. The respondent, on the other hand, argued that the sentence was appropriate given the circumstances of the case and the potential benefits of the ICO.

The legal issues before the court were whether the sentence was manifestly inadequate and if the court should exercise its appellate jurisdiction to impose a harsher sentence. The court had to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, in light of the particular facts and circumstances of the case. The court was also required to assess whether the sentence imposed by the trial judge was manifestly inadequate and whether there were any errors in the application of the relevant statutory provisions or sentencing principles.

In allowing the appeal, the court found that the sentence of 12 months’ imprisonment to be served by an ICO was manifestly inadequate. The court emphasised the seriousness of the offence of arson and the importance of general deterrence. The court held that the sentence did not adequately reflect the gravity of the offence, nor did it provide sufficient punishment or deterrence. The court further found that the trial judge had not adequately considered the need for general deterrence and had placed too much emphasis on the rehabilitative aspects of the ICO. As a result, the appeal was allowed, and the case was remitted to the County Court for the imposition of a new sentence.

The court ordered that the case be returned to the County Court to determine an appropriate sentence, taking into account the principles of sentencing and the need for general deterrence. The court did not specify a particular sentence but left it to the discretion of the County Court to impose a sentence that was commensurate with the seriousness of the offence and the need for punishment and deterrence.

Orders