SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0126
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ERIC FRANK (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2021 |
| DATE OF JUDGMENT: | 11 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 163 |
| JUDGMENT APPEALED FROM: | [2020] VCC 768 (Judge D Sexton) |
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CRIMINAL LAW – Appeal – Sentence – Crown Appeal – Manifest inadequacy – Rape – Respondent and co-offender found alcohol and drug-affected victim semiconscious on footpath late at night and offered to drive her home – Victim not known to respondent or co-offender – Respondent stopped en route and penetrated victim – Respondent pleaded guilty to two counts of rape – Respondent sentenced to 6 years and 6 months’ imprisonment, with non-parole period of 3 years and 11 months – Individual sentences below the standard sentence for rape – Whether sentence manifestly inadequate – Inherently serious offence – Complete disregard for victim’s dignity and welfare – High degree of moral culpability – Respondent 23 years old at the time of offending – Good prospects of rehabilitation – Rehabilitation important sentencing consideration – Sentence within range – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Kissane QC with Ms A Ellis | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr I Hill QC with Dr M Fitzgerald | Doogue + George Defence Lawyers |
MAXWELL P:
I have had the considerable advantage of reading in draft the reasons for judgment of Emerton JA. I agree with the order which her Honour proposes, for the reasons which she gives.
T FORREST JA:
Having had the advantage of reading in draft the reasons for judgment of Emerton JA, I agree that the appeal should be dismissed, for the reasons given by her Honour.
EMERTON JA:
Following a plea of guilty in the County Court of Victoria at Melbourne, the respondent was convicted and sentenced on 4 June 2020 as follows:
| Charge Indictment C1811924A | Offence | Maximum | Sentence | Cumulation |
| 1 | Rape | 25 years’ imprisonment [s 38(1) Crimes Act 1958] | 5 years 9 months’ imprisonment | Base |
| 2 | Rape | 25 years’ imprisonment [s 38(1) Crimes Act 1958] | 5 years’ imprisonment | 9 months |
Total Effective Sentence: | 6 years and 6 months’ imprisonment | |||
Non-Parole Period: | 3 years and 11 months | |||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | 713 days | |||
| 6AAA Statement: 8 years with a non-parole period 5 years 4 months | ||||
| Other relevant orders: Forfeiture and Disposal Orders | ||||
The appellant (‘the Director’) has appealed the sentences on the single ground that the individual sentences on each of charges 1 and 2, the orders for cumulation, and the non-parole period and total effective sentence imposed are each manifestly inadequate.
Circumstances of the offending
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- AGLC
- Director of Public Prosecutions v Eric Frank (a pseudonym)[1] [2021] VSCA 163
- Case
- [2021] VSCA 163
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the sentence imposed on Frank was manifestly inadequate. The court had to consider the inherently serious nature of the offence, Frank's complete disregard for the victim's dignity and welfare, and the high degree of moral culpability. Additionally, the court needed to assess Frank's prospects for rehabilitation and the importance of rehabilitation as a sentencing consideration. The appeal hinged on whether the sentence fell within the appropriate range for the offence committed.
The court examined the nature of the offence, noting the complete disregard for the victim's dignity and welfare, and the high degree of moral culpability. Despite these factors, the court also considered Frank's age at the time of the offence (23 years old) and his good prospects for rehabilitation. Rehabilitation was deemed an important consideration in the sentencing process. The court concluded that the sentence was within the appropriate range and dismissed the appeal, affirming the original sentence.
No additional orders were made beyond the dismissal of the appeal and the affirmation of the original sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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