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DPP v Howard

DPP v Howard

Case [2021] VSCA 298 4 November 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0043

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
HECTOR HOWARD (a pseudonym)[1]	Respondent

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

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JUDGES:	MAXWELL P, T FORREST and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2021
DATE OF JUDGMENT:	4 November 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 298
JUDGMENT APPEALED FROM:	[2021] VCC 354 (Judge Trapnell)

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CRIMINAL LAW – Director’s Appeal – Sentence – Sexual penetration of a child or lineal descendant – Involving a child in the production of child abuse material – Manifest inadequacy – Whether current sentencing practices involving pleas of guilty are of assistance in formulating sentence after trial – Sentence of nine years and seven months’ imprisonment with non-parole period of seven years manifestly inadequate given objective gravity and uplift called for in Dalgliesh – R v Verdins (2007) 16 VR 269, Director of Public Prosecutions v Dalgliesh (a pseudonym) [2016] VSCA 148 applied; Crimes Act 1958 ss 50C, 51B – Appeal allowed – Resentenced to 13 years’ imprisonment with non-parole period of 10 years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D I Piekusis QC, with Mr J Dickie	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann QC, with Mr D J Carolan	Dribbin & Brown Criminal Law

MAXWELL P
T FORREST JA
WALKER JA:

On 12 December 2019, after a lengthy trial, a jury convicted the respondent of three charges of sexual penetration of a child or lineal descendant (charges 2, 3 and 4).[2] The victim was his biological daughter. He had previously pleaded guilty to a charge of involving his daughter in the production of child abuse material (charge 5).[3] The respondent also pleaded guilty on 20 March 2020 to three transferred summary charges of contravening a family violence intervention order (‘FVIO’).
[2]Contrary to the Crimes Act 1958 s 50C (‘Crimes Act’).
[3]Contrary to ibid s 51B.

The respondent was sentenced on 26 March 2021 as follows:

Charge on Indictment K10475684 Offence Maximum Sentence Cumulation

2. Sexual penetration of a child or lineal descendant 25 years 6 years 1 year

3. Sexual penetration of a child or lineal descendant 25 years 7 years Base

4. Sexual penetration of a child or lineal descendant 25 years 6 years and 6 months 18 months

5. Involving a child in the production of child abuse material 10 years 3 months 1 month

Related Summary Offences

6. Contravention of a family violence intervention order 2 years $300 fine -

7. Contravention of a family violence intervention order 2 years $300 fine -

8. Contravention of a family violence intervention order 2 years $300 fine -

Total Effective Sentence: 9 years and 7 months’ imprisonment

Non-Parole Period: 7 years

Pre-Sentence Detention Declaration: 620 days

Section s 6AAA…

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 Howard

Details

AGLC: Director of Public Prosecutions v Howard (a pseudonym) [2021] VSCA 298
Case: [2021] VSCA 298
Decision Date: 4 November 2021

CaseChat Overview and Summary

The case of Director of Public Prosecutions v Howard was heard in the Court of Appeal in Victoria. The appellant, the Director of Public Prosecutions, sought to appeal the sentence imposed on the respondent, Howard, who had been found guilty of sexual penetration of a child or lineal descendant and of involving a child in the production of child abuse material. The Director of Public Prosecutions submitted that the original sentence of nine years and seven months’ imprisonment with a non-parole period of seven years was manifestly inadequate, and therefore appealed to the Court of Appeal.

The central legal issue before the court was whether the current sentencing practices involving pleas of guilty were of assistance in formulating a sentence after trial. The court considered the objective gravity of the crimes committed by Howard, and the appropriate uplift required in accordance with Dalgliesh. The court also considered the principles established in R v Verdins (2007) 16 VR 269, and the relevant provisions of the Crimes Act 1958. The court needed to determine whether the original sentence imposed was manifestly inadequate, and if so, what an appropriate sentence would be.

The Court of Appeal found that the original sentence was indeed manifestly inadequate, given the objective gravity of the crimes committed and the appropriate uplift required. The court noted that the crimes committed by Howard were of a particularly serious nature, and that the original sentence did not adequately reflect the gravity of these crimes. The court considered the principles established in Dalgliesh and Verdins, and concluded that a higher sentence was warranted. The court allowed the appeal and resentenced Howard to 13 years’ imprisonment with a non-parole period of 10 years.

In light of the above, the Court of Appeal allowed the Director of Public Prosecutions’ appeal and resentenced Howard to 13 years’ imprisonment with a non-parole period of 10 years. The court emphasised the importance of ensuring that sentences reflect the objective gravity of the crimes committed, and that appropriate uplift is applied in accordance with established legal principles. This case serves as a reminder of the need for careful consideration of sentencing in cases involving particularly serious crimes.

Orders