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DPP v Frank (a pseudonym)

DPP v Frank (a pseudonym)

Case [2021] VSCA 163 11 June 2021

Criminal Liability

Manifestly Inadequate Sentence

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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

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 Frank (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Eric Frank (a pseudonym)[1] [2021] VSCA 163
Case: [2021] VSCA 163
Decision Date: 11 June 2021

CaseChat Overview and Summary

The case involved an appeal by the Director of Public Prosecutions against the sentence imposed on a respondent, referred to as Frank, for two counts of rape. Frank and a co-offender found a victim, who was in a semiconscious state due to alcohol and drug intoxication, on a footpath late at night. The victim was not known to Frank or his co-offender. They offered to drive her home but Frank stopped en route and committed the offence. Frank pleaded guilty to the charges and was sentenced to six years and six months' imprisonment, with a non-parole period of three years and eleven months. The appeal was based on the contention that the sentence was manifestly inadequate.

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