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DPP v Hopson

DPP v Hopson

Case [2016] VSCA 303 8 December 2016

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0062

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
IVOR HOPSON (A PSEUDONYM)[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	REDLICH and WHELAN JJA, and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2016
DATE OF REASONS:	8 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 303
JUDGMENT APPEALED FROM:	DPP v Hopson [2016] VCC 293 (Judge Cohen)

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CRIMINAL LAW – Director of Public Prosecutions’ appeal against sentence – Multiple charges of incest, indecent act with child under 16 and knowingly possess child pornography – Sentenced to eight years’ imprisonment with a non-parole period of five years and nine months – Significant prior convictions – Need for specific deterrence –Sentenced as a serious sexual offender – Presumption of cumulation – Principal sentencing purpose is the protection of the community – Tension between s 6E Sentencing Act 1991 and the principle of totality – Specific error in relation to degree of concurrency ordered by sentencing judge – Manifest inadequacy – Appeal allowed – Respondent re-sentenced to 11 years and six months’ imprisonment with a non-parole period of eight years and six months – Reid (a Pseudonym) v The Queen (2014) 42 VR 295 – R H McL v The Queen (2000) 203 CLR 452 – Gordon (a Pseudonym) v The Queen [2013] VSCA 343.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Boyce SC	Mr John Cain, Solicitor for Public Prosecutions
For the Respondent	Ms H Spowart with Ms E Broughton	Victoria Legal Aid

REDLICH JA
WHELAN JA
BEALE AJA:

Introduction

This is an appeal by the Victorian Director of Public Prosecutions (the Director) against the sentence imposed on the respondent for several sexual offences.

We are satisfied that the total effective sentence and the non-parole period imposed by the sentencing judge were, as a result of the extent of the orders for concurrency, affected by specific error and are manifestly inadequate.

Nothing about the conduct of the Director before the sentencing judge warrants the exercise of the residual discretion to dismiss the appeal.

In the words of s 289 of the Criminal Procedure Act 2009, we are therefore satisfied that there is an error in the sentence first imposed and that a different sentence should be imposed.

Accordingly, we allow the appeal and resentence the respondent by reducing the amount of concurrency ordered by the sentencing judge in respect of the state sentences, producing a total effective sentence of 11 years and six months’ imprisonment with a non-parole period of eight years and six months’ imprisonment (as compared with the current sentence of eight years imprisonment with a non-parole period of five years and nine months). Pursuant to s 6AAA of the Sentencing Act 1991, we declare that, but for the respondent’s plea of guilty, we would have imposed a total effective…

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 Hopson

Details

AGLC: DPP v Hopson [2016] VSCA 303
Case: [2016] VSCA 303
Decision Date: 8 December 2016

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed on the respondent, who was convicted of multiple charges including incest, indecent acts with a child under 16, and possession of child pornography. The respondent was sentenced to eight years’ imprisonment with a non-parole period of five years and nine months. The appeal focused on the adequacy of the sentence given the respondent's significant criminal history and the need for specific deterrence. The court needed to consider the statutory objectives of sentencing and the appropriate balance between deterrence, punishment, and rehabilitation.

The court addressed the tension between the statutory objective of protecting the community, as per section 6E of the Sentencing Act 1991, and the principle of totality, which aims to ensure that the overall sentence is proportionate. The court found that the sentencing judge erred in the degree of concurrency ordered, resulting in a manifestly inadequate sentence. Given the respondent's history of serious sexual offences, the court determined that a more severe sentence was necessary to adequately protect the community and deter future offending. The appeal was allowed, and the respondent was re-sentenced to 11 years and six months’ imprisonment, with a non-parole period of eight years and six months.

The court relied on precedents such as Reid (a Pseudonym) v The Queen, R H McL v The Queen, and Gordon (a Pseudonym) v The Queen to support its decision. The re-sentenced terms were deemed appropriate to reflect the seriousness of the offences and the need for specific deterrence. The final orders of the court mandated the re-sentencing of the respondent as specified.

Orders