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DPP v Ellis

DPP v Ellis

Case [2005] VSCA 105 5 May 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 341 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
KAREN LOUISE ELLIS

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JUDGES:	CALLAWAY, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 April 2005
DATE OF JUDGMENT:	5 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 105

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Criminal law – Sentencing – Crown appeal – Female schoolteacher taking part in acts of sexual penetration with male child under 16 (six counts) – Child under care, supervision or authority of respondent – Equality of concern for male and female victims – Equality in treatment of male and female offenders – Relevance of Sex Offenders Registration Act 2004 to sentencing – Sentence of 22 months' imprisonment, wholly suspended, manifestly inadequate – Double jeopardy – Respondent re‑sentenced to 32 months’ imprisonment with six months to serve immediately and 26 months suspended for operational period of three years - Crimes Act 1958, s.45.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Mr K. Gilligan	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. with Mr B.J. Bourke	Chester Metcalfe & Co.

CALLAWAY, J.A.:

Introduction

Over the last 30 years the Victorian Parliament has, in a series of reforms, modernized much of the criminal law. Those reforms have included the law relating to theft and offences of dishonesty, criminal damage and inchoate offences. One major area of reform has been the law relating to sexual offences, beginning with the Crimes (Sexual Offences) Act 1980.[1] The preamble to that Act recited, among other things, that it was desirable for the law to protect all persons from sexual assaults and other acts of sexual coercion and to protect persons from sexual exploitation, especially exploitation by persons in positions of care, supervision and authority, and that it was desirable for the law to protect and otherwise treat men and women so far as possible in the same manner. The provisions of the Crimes Act 1958 relating to sexual offences, which almost exclusively contemplated offences committed by men[2], were replaced by gender-neutral provisions in which, in accordance with the preamble, men and women were treated so far as possible in the same manner. The provisions have been amended from time to time but that principle has continued to be observed. It is well illustrated by s.45 of the Crimes Act, the section with which this case is concerned.
[1]See R. v. Coffey (2003) 6 V.R. 543 at 547 [11]-[12].
[2]An exception was incest (s.53). In the text accompanying this footnote, I am referring to the actual perpetrator of an offence. It was possible for a woman to be guilty of a sexual offence by aiding and abetting or counselling and procuring. See also R. v. Hewitt [1997] 1 V.R. 301 at 319.

Section 45(1) and (2) provide:

“(1)A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
(2)A person who is guilty 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 Ellis

Details

AGLC: DPP v Ellis [2005] VSCA 105
Case: [2005] VSCA 105
Decision Date: 5 May 2005

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Ellis, the High Court was tasked with reviewing the sentence handed down by the County Court in Victoria. The respondent, a female schoolteacher, was convicted of engaging in sexual penetration with a male child under the age of 16 on six occasions, where the child was under her care, supervision, or authority. The Crown appealed the sentence of 22 months' imprisonment, wholly suspended, arguing it was manifestly inadequate. The appeal hinged on the principle of equality in sentencing, both in terms of the treatment of male and female victims and offenders, as well as the relevance of the Sex Offenders Registration Act 2004.

The court examined the need for equal concern for both male and female victims and the necessity to ensure equality in the treatment of male and female offenders. It was essential to consider the impact of the Sex Offenders Registration Act 2004 on the sentencing process, as well as the public interest in protecting children from sexual abuse. The High Court found that the original sentence did not appropriately reflect the gravity of the respondent's crimes, nor did it adequately address the principles of deterrence, rehabilitation, and denunciation.

In light of the aforementioned factors, the High Court concluded that the original sentence was manifestly inadequate and re-sentenced the respondent to 32 months' imprisonment, with six months to be served immediately and 26 months suspended for an operational period of three years. This decision was made under the authority of section 45 of the Crimes Act 1958, which allows for the review of sentences by the High Court. The court emphasised the importance of ensuring that sentences are proportionate to the seriousness of the offence and take into account the relevant principles of sentencing.

Orders