DPP v DJT - [2005] VSCA 270

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 271 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DJT

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JUDGES:	CHARLES, CALLAWAY and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 2005
DATE OF JUDGMENT:	17 November 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 270

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Criminal law – Sentencing – Crown appeal following failure by respondent to honour undertaking to give evidence against alleged co-offender – Threats to respondent in prison if he gave such evidence – Young offender with prospects of rehabilitation – Delay in serving notice of appeal – Respondent already released on parole – Exceptional circumstances, some of them peculiar to respondent – Head sentence increased but non-parole period affirmed – Crimes Act 1958, s.567A(1A) and (4A).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.R.C. Southey	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr D. Grace, Q.C. with Mr M.J. Croucher	Robert Stary & Associates

CHARLES, J.A.:

I will invite Callaway, J.A. to deliver the first judgment.

CALLAWAY, J.A.:

This is an appeal by the Director of Public Prosecutions pursuant to s.567A(1A) of the Crimes Act 1958, which provides that the Director may appeal against a sentence if the sentence was of lesser severity because of an undertaking given by the offender to assist law enforcement authorities in the investigation or prosecution of an offence and the Director considers that the offender has failed, wholly or partly, to fulfil the undertaking. Sub-section (4A) in turn provides that, on such an appeal, if it thinks that the offender has failed wholly or partly to fulfil the undertaking, the Court of Appeal may quash the sentence and pass such other sentence warranted in law as it thinks fit[1].
[1]See also s.5(2AB) and (2AC) of the Sentencing Act 1991.

The respondent pleaded guilty in the County Court to one count of attempted armed robbery. He had made a statement concerning the offence and the involvement of an alleged co-offender, Simon Giretti. In the course of the plea he undertook to assist in the prosecution of Giretti by giving evidence consistent with that statement. On 26th May 2005 the learned judge sentenced the respondent to three years' imprisonment with a non-parole period of 12 months and made a declaration regarding 275 days' pre-sentence detention.

His Honour referred to the undertaking twice in the course of his sentencing remarks. He said, at [15]:

"[Y]ou have agreed to give evidence, if required, in the prosecution of Giretti. For this agreement, you must be given credit and I will reduce the sentence that I otherwise would have imposed because of this indication. That means you really get a double dose of discount. One for your early plea, your co-operation and so on, and another discount over and above that because you are willing, if required, to give evidence against Mr Giretti."

His Honour mentioned the undertaking and the discount again when he came to

pass sentence.

On 29th June 2005 the respondent was to be called as a…

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 DJT

Details

AGLC: Director of Public Prosecutions v DJT [2005] VSCA 270
Case: [2005] VSCA 270
Decision Date: 17 November 2005

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v DJT involved a Crown appeal against the sentencing of the respondent, DJT, who had been found guilty of a criminal offence. The appeal arose due to the respondent's failure to honour an undertaking to give evidence against an alleged co-offender. The respondent had not testified as promised, citing threats he had received in prison if he did so. The appeal was heard by the court of appeal, which needed to determine the appropriate sentence for DJT in light of these circumstances.

The primary legal issue before the court was whether the sentencing judge had erred in setting the head sentence and non-parole period for DJT. Given that the respondent did not provide evidence as agreed, the court had to consider whether the original sentence was appropriate or if it needed to be altered. The court also had to weigh the respondent's prospects of rehabilitation and the exceptional circumstances surrounding his case, including threats made to him in prison. The court needed to assess if these circumstances justified a variation in the sentence.

The court found that while the original sentence was appropriate in many respects, there were exceptional circumstances that warranted an increase in the head sentence. These circumstances included threats made to DJT in prison, which deterred him from giving evidence, as well as other factors peculiar to the respondent. However, the court held that the non-parole period should remain unchanged, given the respondent's prospects of rehabilitation. The court concluded that DJT's case warranted an increased head sentence but maintained the original non-parole period. The court's decision was influenced by statutory provisions, specifically sections 567A(1A) and (4A) of the Crimes Act 1958.

The final orders of the court were that the head sentence for DJT was increased, but the non-parole period remained unchanged. This decision was grounded in the exceptional circumstances surrounding DJT's case and his prospects of rehabilitation. The court's ruling aimed to balance the need for justice with the respondent's potential for future rehabilitation.

Orders