DPP v Grieves - [2003] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 220 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
PETER ALTON GRIEVES

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JUDGES:	PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2003
DATE OF JUDGMENT:	20 February 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 10

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Criminal law – Crown Appeal against sentence – Rape and indecent assault – Prior convictions for sexual offences – Respondent to be sentenced as serious sexual offender – Sentence of two years’ imprisonment wholly suspended manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. (D.P.P.) and Mr C.J. Ryan	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mrs J. Morrish, Q.C. and Ms E. Brimer	Hollows, Solicitors

PHILLIPS, C.J.:

The respondent, who is aged 53, pleaded guilty in the County Court at Melbourne on 7 August last to one count of rape (count 1 on the presentment) and one count of indecent assault (count 2). These offences, which carried maximum penalties of 25 and 10 years' imprisonment respectively, were committed at Pearcedale on 6 February 2002. The victim in each instance was a young man in his early twenties who had recently worked with the respondent.

The respondent admitted 21 previous convictions from one court appearance in the County Court in November 1988. These offences involved sexual penetration of, and indecent assault upon, a boy of some four-and-a-half years over a period of some 13 months. Some of these offences were dealt with by the imposition of sentences of imprisonment, making up a total effective sentence of 12 months of which six months was suspended for a period of 12 months. For other offences he was released upon entering into a bond of $500 to be of good behaviour for four years. The respondent kept that bond.

In the instant case, after hearing a plea for leniency which included sworn evidence from a Dr Ball, a psychologist, and the reception by his Honour of some documents and a victim impact statement, the learned judge sentenced the respondent (who fell to be sentenced as a serious sexual offender) to two years' imprisonment on count 1 and one year’s imprisonment on count 2. These sentences were not made cumulative and were both totally suspended for a period of three years.

The Director of Public Prosecutions later lodged notice of appeal pleading the following grounds:

“1. The sentence imposed in respect of each count was manifestly inadequate.
2. In fixing a term of imprisonment of two years in respect of count 1 and in fixing a term of imprisonment of one year in respect of count 2 and imposing a total effective sentence of two years’ imprisonment and in ordering the whole of such term to be suspended for a period of three years, the sentencing judge –
(a)failed to adequately reflect the gravity of the offence generally and this case in particular;
(b)erred in concluding that there were exceptional, extraordinary or unusual circumstances of this case which…

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 Grieves

Details

AGLC: Director of Public Prosecutions v Grieves [2003] VSCA 10
Case: [2003] VSCA 10
Decision Date: 20 February 2003

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Grieves was heard in the Court of Appeal. The central issue was the sentence imposed by the trial judge on Grieves, who had been convicted of rape and indecent assault. The Director of Public Prosecutions appealed the sentence, arguing that it was manifestly inadequate given Grieves' criminal history and the nature of the crimes committed. Grieves had prior convictions for sexual offences, and the prosecution sought to have him sentenced as a serious sexual offender.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate and if the trial judge had erred in not considering Grieves as a serious sexual offender. The court needed to determine whether the trial judge had properly exercised his discretion in sentencing, taking into account all relevant factors, including Grieves' criminal history and the nature and circumstances of the offences. The appeal hinged on whether the sentence of two years' imprisonment wholly suspended was too lenient and failed to adequately reflect the seriousness of the crimes committed and the risk Grieves posed to the community.

The court held that the sentence imposed was indeed manifestly inadequate. It found that the trial judge had failed to appropriately weigh the seriousness of the offences and the risk posed by Grieves to the community. The court considered the trial judge's failure to classify Grieves as a serious sexual offender to be a significant error, as this would have led to a more appropriate sentence. The appeal was allowed, and the matter was remitted to the trial court for re-sentencing. The court emphasised the importance of ensuring sentences reflect the gravity of sexual offences and the need to protect the community.

Orders