DPP v Hardy

[2011] VSCA 86

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0140   

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY JOHN HARDY

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JUDGES:	BUCHANAN, NEAVE and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February 2011
DATE OF JUDGMENT:	4 April 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 86
JUDGMENT APPEALED FROM:	R v Hardy (Unreported, County Court of Victoria, Morwell, Judge Lawson, 7 April 2010)

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CRIMINAL LAW – Crown appeal – Indecent act with a child – Child pornography offences – Effect of abolition of principle of double-jeopardy – Appellant limited by stance of prosecutor at plea – Plea of guilty – Offender mentally retarded – Concurrency – Overlapping of offending – Total effective sentence of three years’ imprisonment with a minimum term of one year and six months’ imprisonment not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Rapke QC with Mr M Roper	Office of Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr G Casement	Victoria Legal Aid (Bairnsdale)

BUCHANAN JA:

1. The respondent was arraigned in the County Court and pleaded guilty to a presentment containing two counts of an indecent act with or in the presence of a child under the age of 16 years (counts 1 and 7), two counts of procuring a minor for the purpose of producing child pornography (counts 2 and 5), two counts of producing child pornography (counts 3 and 6), a count of possession of child pornography (count 4) and a count of using an online information service to transmit objectionable material (count 8).  The maximum penalty for each of the counts save that of possession of child pornography was ten years’ imprisonment.  The maximum penalty for possession of child pornography was five years’ imprisonment.

1. After a plea, the respondent was sentenced to be imprisoned for a term of six months on each of counts 1 to 4, for a term of 24 months on each of counts 5, 6 and 7 and for a term of 12 months on count 8.  The sentencing judge cumulated three months of each of the sentences on counts 5 and 6 and two months of each of the sentences on counts 1, 2 and 8 on each other and on the sentence on count 7.  The total effective sentence was three years’ imprisonment.  The sentencing judge fixed a minimum term of one year and six months’ imprisonment.

1. The Director has appealed against the sentence.

1. The victim of the offending was a 15 year old girl, who met the respondent when she frequented a bicycle shop in Bairnsdale where the respondent was employed as a mechanic.  The proprietor of the shop was convicted on a count of maintaining a sexual relationship with the same girl for some two years when she was aged between 13 and 15 years. 

1. The complainant, who was homeless, stayed at the respondent’s flat on a number of occasions in December 2008 and January 2009.  The respondent was then aged 29 years.

1. One night…