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DPP v HPW

DPP v HPW

Case [2011] VSCA 88 5 April 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0317

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	V
HPW	Respondent

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JUDGES	NEAVE, MANDIE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 March 2011
DATE OF JUDGMENT	5 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 88
JUDGMENT APPEALED FROM	DPP v HPW (Unreported, County Court of Victoria. Judge Shelton, 17 August 2010).

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CRIMINAL LAW – Crown Appeal – Sentence – Respondent pleaded guilty to two representative charges of incest, three other charges of incest, one representative charge of indecent act with child under 16 and two other charges of indecent act with child under 16 – Sentencing judge found causal connection between respondent’s Asperger's Syndrome and offending – Whether that finding open on the evidence – Whether sentence manifestly inadequate – Whether appropriate orders for cumulation made – Appeal allowed – Error in finding of causal connection – Sentence manifestly inadequate – Error in cumulation – Respondent re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J W Rapke QC and Mr P B Kidd	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr M J Croucher and Ms D M New	Cameron Lawyers

NEAVE JA:

I agree with Tate JA that the appeal should be allowed and that the respondent should be re-sentenced in the manner she proposes. I would add only, that even if there had been evidence before the sentencing judge that the respondent had misread ‘cues’ from his young daughter because of his Asperger’s Syndrome, I doubt very much whether this could be regarded as reducing his culpability for acts of incest or indecent assault.

MANDIE JA:

I agree with Tate JA.

TATE JA:

The Director of Public Prosecutions (‘DPP’) has brought this appeal against the sentence imposed upon the respondent, ‘HPW’, under s 287 of the Criminal Procedure Act 2009 on three grounds, the first alleging specific error, the second based on a claim of manifest inadequacy and the third based on the failure of the sentencing judge to make appropriate orders for cumulation. Here, the Crown relies principally upon the complaint that the sentence was manifestly inadequate, a ground which falls under the last category of case identified in the classification of appellable errors made in the exercise of the sentencing discretion in House v The King,[1] namely, where,[2]

although the nature of the [specific] error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

[1](1936) 55 CLR 499.

[2]Ibid, 505. See also Dinsdale v The Queen (2000) 202 CLR 321, 324-5 [3]-[4]; York v The Queen (2005) 225 CLR 466, 468-9; Carroll v The Queen (2009) 83 ALJR 579.

More particularly, the grounds of appeal were as follows:

GROUND 1 The sentencing judge erred in finding a causal connection between the respondent’s Asperger’s Syndrome and the offending in question.
GROUND 2 The sentence imposed on each count of Indictment…

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 HPW

Details

AGLC: DPP v HPW [2011] VSCA 88
Case: [2011] VSCA 88
Decision Date: 5 April 2011

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus HPW, the High Court was asked to consider the sentence handed down to the respondent following his guilty pleas to multiple charges of incest and indecent acts with a child under 16. The sentencing judge had found a causal connection between the respondent's Asperger's Syndrome and his offending behaviour, a finding that was subsequently contested by the Crown. The central issues for the Court were whether the causal connection finding was supported by the evidence, if the sentence was manifestly inadequate, and whether the orders for cumulation were appropriate.

The Court began by examining the sentencing judge's finding of a causal connection between Asperger's Syndrome and the offending behaviour. The Court held that this finding was not supported by the evidence, and as such, constituted an error of law. The Court then moved on to consider whether the sentence was manifestly inadequate. The Crown argued that the sentence did not adequately reflect the seriousness of the offences, and the Court agreed, finding that the sentence was manifestly inadequate. Finally, the Court assessed the orders for cumulation, and determined that there was an error in the manner in which these orders were made.

In light of these findings, the appeal was allowed, and the Court re-sentenced the respondent. The Court noted that while the respondent's Asperger's Syndrome may have contributed to his offending behaviour, it did not excuse it, and the sentence must reflect the seriousness of the offences. The Court emphasised the importance of ensuring that sentences are proportionate to the crimes committed, and that appropriate orders for cumulation are made. The Court's decision serves as an important reminder to sentencing judges of the need to carefully consider all relevant factors when determining an appropriate sentence.

Orders