Criminal Law – Sentence – Director’s Appeal – Three counts of indecent assault contrary to s.44(1) Crimes Act 1958 – One count of taking part in an act of sexual penetration with a child under 10 years of age contrary to s.47(1) of the Crimes Act 1958 – One count of taking part in an act of sexual penetration with a child under the age of 16 years contrary to s.45 of the Crimes Act 1958 – Offences committed by the respondent against his three younger stepbrothers between 1984 and 1995 – 12 months’ community based order for all counts – Uncertainty as to programme condition – Whether sentence manifestly inadequate – Principles upon which Director’s Appeals decided – Notion of personal and social rehabilitation – Whether sentence imposed on counts 4 and 5 failed to reflect the very serious character of the respondent’s conduct – Appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr. P.A. Coghlan, Q.C., D.P.P. with Ms S. Pullen
Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent
Mr. O.P. Holdenson, Q.C., with Mr. R. Marron
Robert Stary and Associates
BATT, J.A.:
In my opinion, for the reasons given by Vincent, J.A., which I have had the benefit of reading, this appeal should be allowed and the order proposed by his Honour made. The offences the subject of counts 4 and 5, and particularly the former, are regarded by Parliament and the courts as serious indeed. They involved penetration. The victim was young, especially in the period covered by count 4 (being between six and almost 10 years of age), whilst the respondent was an adult or close to it (being between 17 and 21 years of age in the case of count 4 and between 21 and 24 years in the case of count 5). Further, the two counts were representative counts. Those counts required, in my opinion, the imposition of a custodial sentence. Whether that could have been wholly suspended need not be determined, for that can properly be done on this appeal, particularly having regard to the attitude of the Director announced at the commencement of the hearing, to the fact that the respondent has attended upon Mr. Cummins since being sentenced, and to the fact that he has been at large since being sentenced, not to mention the usual constraints operating from this Court in Directors’ appeals. The sentencing process in this case was very largely offender-orientated. This meant that it did not have regard to the whole picture revealed by the material or indeed the main part of it, namely, the objective seriousness of the offences and their effect upon the victim. Those considerations made just punishment and general deterrence the main sentencing purposes.…
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.
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Details
AGLC
DPP v DJK [2003] VSCA 109
Case
[2003] VSCA 109
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions v DJK, the respondent was convicted and sentenced for three counts of indecent assault and two counts of engaging in sexual acts with children. The sentencing court imposed a 12-month community-based order for each count, which was the subject of an appeal by the Director of Public Prosecutions. The appeal centred on whether the sentence was manifestly inadequate, particularly in light of the severity of the crimes committed against the respondent's three younger stepbrothers between 1984 and 1995. The court was tasked with determining whether the sentence imposed on the more serious charges failed to reflect the very serious character of the respondent's conduct, and if the sentence was appropriate in the context of the principles governing Director's Appeals.
The court examined the principles of sentencing, particularly the notion of personal and social rehabilitation. It considered the seriousness of the offences, the age of the victims, and the impact on the victims. The court also assessed whether the sentence was adequate in light of the need for deterrence and denunciation. It was noted that the sentencing court had imposed a community-based order, which was a form of punishment that could be effective in achieving rehabilitation, but the court had to ensure that the sentence was not so lenient as to undermine the gravity of the crimes committed. The court considered the overarching principle that the sentence should reflect the very serious character of the respondent’s conduct.
The court concluded that the sentence imposed on counts 4 and 5 of the indictment, which involved sexual penetration with a child under 10 and under 16 years of age, was manifestly inadequate. The severity of the crimes warranted a more substantial sentence that would adequately reflect the gravity of the offences. The court allowed the appeal and remitted the matter to the sentencing court for re-sentencing. The decision underscored the importance of ensuring that sentences for such serious crimes are commensurate with their severity and impact.