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…
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- AGLC
- DPP v Hopson [2016] VSCA 303
- Case
- [2016] VSCA 303
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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