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DPP v Groube

DPP v Groube

Case [2010] VSCA 150 25 June 2010

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 0625 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF VICTORIA
	v
ANDREW DAVID GROUBE

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JUDGES:	BUCHANAN and WEINBERG JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2009
DATE OF JUDGMENT:	25 June 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 150
JUDGMENT APPEALED FROM:	R v Groube (Unreported, County Court Of Victoria, Judge Mason, 17 April 2009)

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CRIMINAL LAW – Director’s appeal – Child pornography offences – Whether the sentence of a Community Based Order imposed on count 2 was manifestly inadequate – Discretion of an appellate court to intervene in sentence imposed below – Appeal dismissed.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant:	Mr D Gurvich	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent:	Mr S Gillespie-Jones with Mr P Tiwana	Paul Vale Criminal Law

BUCHANAN JA:

I agree with Coghlan AJA.

WEINBERG JA:

I have read in draft the reasons for judgment of Coghlan AJA. I too would dismiss the appeal.

COGHLAN AJA:

The respondent pleaded guilty in the County Court at Melbourne to having used a carriage service to access and transmit child pornography, contrary to s 474.19(1)(a) of the Criminal CodeAct 1995 (Cth), and to having knowingly possessed child pornography contrary to s 70 of the Crimes Act 1958 (Vic).

On 17 April 2009, the respondent was sentenced on count 1 to a term of 18 months’ imprisonment, to be released forthwith on entering into a Recognizance Release Order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), subject to certain conditions. He was also sentenced on count 2 to be released on a Community Based Order which required him, inter alia, to perform 150 hours of unpaid community work over a period of two years.

The Victorian Director of Public Prosecutions, who had the carriage of this matter, has now appealed against the sentence imposed on count 2. Put simply, the Director contends that the two year Community Based Order made in respect of that count was manifestly inadequate.

More specifically, the Director contends that the sentence on count 2 failed to pay sufficient regard to various aggravating features of the offending and, in particular:

· the number of images and videos in the possession of the respondent;

· the content of the material and the ages of the children depicted in the pornographic material;

· the period of time that the material had been kept by the respondent;

· the production of multiple copies of the pornographic material; and

· the fact that the respondent had engaged in sending and receiving images via the internet from the relevant collection, thereby contributing to the exploitation of children.

In addition the Director contends that the sentence on count 2 gave too much weight to mitigating factors concerning the respondent, in particular:

· his plea of guilty;

· the unlikelihood of his further offending;

· his excellent record of community service and care provided to his family;

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 Groube

Details

AGLC: DPP v Groube [2010] VSCA 150
Case: [2010] VSCA 150
Decision Date: 25 June 2010

CaseChat Overview and Summary

The appeal by the Director of Public Prosecutions (DPP) against the sentencing of the respondent, Groube, was heard in the Court of Appeal. The appeal focused on the adequacy of the sentence imposed by the primary judge for two counts of child pornography offences. Count 1 involved the possession of child pornography, while count 2 related to the uploading of such material. The primary judge had sentenced Groube to a Community Based Order for count 2, which the DPP argued was manifestly inadequate.

The legal issues at the heart of this appeal revolved around the appropriate sentence for the second count of child pornography and whether the appellate court had the discretion to intervene in the sentence imposed by the trial judge. The primary consideration was whether the sentence imposed was manifestly inadequate, which would justify appellate intervention. The court also had to consider the principles of sentencing for child pornography offences and the circumstances surrounding Groube's offending.

The Court of Appeal found that the sentence imposed by the primary judge for count 2 was not manifestly inadequate. The court noted that the primary judge had considered the relevant sentencing principles and the circumstances of the case. The appellate court emphasised the importance of judicial restraint in interfering with the sentencing decisions of trial judges, unless there was a clear error in principle. The court held that the primary judge's sentencing decision did not constitute such an error, and accordingly, the appeal was dismissed.

Orders