DPP v Devaldez - [2003] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 145 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
CLIVE WILLIAM DEVALDEZ

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JUDGES:	PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2003
DATE OF JUDGMENT:	11 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 29

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Criminal Law – Sentence – Crown Appeal – Respondent convicted by a jury of a count of indecent assault and three counts of rape – Offences committed on young female victim in her own home in the night time – Respondent had prior convictions for a number of serious sexual offences against women – Appeal allowed – The total effective sentence and non-parole period increased.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. Mr. C.J. Ryan	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr O.P. Holdenson, Q.C. Mr. G.J. Thomas	Victoria Legal Aid

PHILLIPS, C.J.:

On 1 May 2002 the respondent was arraigned in the County Court at Melbourne upon a presentment containing five counts. These were a count of aggravated burglary (count 1); a count of indecent assault (count 2) and three counts of rape (counts 3, 4 and 5). On 10 May 2002 the jury convicted the respondent on counts 2, 3, 4 and 5 and acquitted him on count 1. In the counts upon which the respondent was convicted, there was a single complainant, a young woman born in March 1982 and it was alleged that the relevant offences had been committed in her own home in the night time of 7 April 2001. The maximum penalties available were 10 years’ imprisonment (count 2) and 25 years’ imprisonment (counts 3, 4 and 5).

The respondent, who is aged 42, admitted 62 prior convictions from nine previous court appearances between June 1978 and June 1996. These convictions included four for rape with aggravating circumstances, two for rape, one for assault with intent to rape, four for indecent assault with aggravating circumstances, two for indecent assault on a female, one for indecent assault and several for burglary or like offences. On all but one appearance the respondent had been sentenced to imprisonment. In the County Court at Melbourne on 31 August 1987 his total effective sentence for very serious sexual offences and others of dishonesty was 13 years. The Court had fixed a non-parole period of 11 years. These offences were committed in the victim’s own home in the night time. It appears that the respondent did not obtain parole of this sentence, but the allowance of remissions procured his release on 10 September 1995. In November 1995 he started the commission of a series of some 28 offences including an offence of indecent assault and 14 offences of stalking. He was arrested on 8 February 1996 and at the Melbourne Magistrates’ Court on 27 June 1996, was sentenced to a total of four years’ imprisonment. In 1982 he received a total effective sentence of eight years’ imprisonment for two counts of rape,…

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 Devaldez

Details

AGLC: Director of Public Prosecutions v Devaldez [2003] VSCA 29
Case: [2003] VSCA 29
Decision Date: 11 April 2003

CaseChat Overview and Summary

The appellant, the Director of Public Prosecutions, brought an appeal against the sentence imposed by the respondent, Devaldez, who was convicted of a count of indecent assault and three counts of rape against a young female victim in her own home at night. The respondent had a history of serious sexual offences against women. The appeal focused on the severity and proportionality of the sentence imposed by the court.

The central legal issues were whether the sentence was manifestly inadequate, and if so, what an appropriate sentence would be. The appeal argued that the sentence did not adequately reflect the seriousness of the crimes committed by the respondent, especially considering his criminal history and the vulnerability of the victim.

The court found that the sentence was manifestly inadequate, and the appeal was upheld. The court emphasised the severity of the offences and the respondent's criminal history, which warranted a more substantial sentence. The court increased the total effective sentence and the non-parole period, ensuring that the sentence reflected the gravity of the crimes committed.

The court ordered that the total effective sentence and the non-parole period be increased to reflect the seriousness of the crimes, the respondent's criminal history, and the vulnerability of the victim. The specific details of the new sentence were not provided in the text.

Orders