Legal Research
Cases
DPP v Hum (a pseudonym)

DPP v Hum (a pseudonym)

Case [2022] VSCA 57 8 April 2022

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0049

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

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

---

JUDGES:	KYROU, NIALL AND WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2022
DATE OF JUDGMENT:	8 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 57
JUDGMENT APPEALED FROM:	[2021] VCC 403 (Judge Gwynn)

---

CRIMINAL LAW – Sentence – Crown appeal – Sexual penetration of child under 16 – Sexual assault of child under 12 – Production, possession and distribution of child abuse material – Total effective sentence of 8 years 8 months’ imprisonment – Whether individual sentences manifestly inadequate – Whether orders of concurrency and cumulation resulted in manifestly inadequate total effective sentence – Whether judge failed to apply s 6E of the Sentencing Act 1991 – Significant childhood deprivation and trauma – Need for community protection – Need for specific and general deterrence – Individual sentences below standard sentence – Individual sentences lenient but not manifestly inadequate – Error established in orders for concurrency and cumulation and in application of s 6E – Manifestly inadequate total effective sentence – Appeal allowed – Resentenced to 11 years 8 months’ imprisonment – Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800, McL v The Queen (2000) 203 CLR 452, applied; Sentencing Act1991 ss 5A, 5B, 6E, 6D, 11A.

---

APPEARANCES:	Counsel	Solicitors
For the appellant	Mr C Boyce QC with Ms R Harper	Ms A Hogan, Solicitor for Public Prosecutions
For the respondent	Mr P Morrisey SC with Mr R Thyssen	Ann Valos Criminal Law Pty Ltd

KYROU JA
NIALL JA
WHELAN JA:

On 9 April 2021, the respondent was sentenced in the County Court to a total effective term of imprisonment of 8 years 8 months with a non-parole period of 5 years 9 months. He had pleaded guilty to a series of sex offences against children, including one offence of sexual penetration of a child under 12 years of age, two offences of sexual assault of a child under 16 years of age, 11 offences of production of child abuse material, offences of possession and distribution of child abuse material, and offences of possession of cannabis and contravention of bail conditions. The first of these offences was committed in November 2012 when the respondent was 17 years old. The rest of the offences were committed during the period 2018 to 2020 when he was 22 to 24 years of age. At the date of sentence he was 25.

The respondent has a tragic personal history. He suffered an acquired brain injury as a baby as a consequence of being shaken by his mother. He was taken from his parents and had up to 20 foster care placements by the age of 4, when he established a…

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 Hum (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Hum (a pseudonym) [2022] VSCA 57
Case: [2022] VSCA 57
Decision Date: 8 April 2022

CaseChat Overview and Summary

The case of DPP v Hum was heard in the Court of Appeal, where the Director of Public Prosecutions appealed against the sentence imposed on Hum, who had been convicted of multiple offences including sexual penetration of a child under 16, sexual assault of a child under 12, and possession, production, and distribution of child abuse material. The Crown argued that the total effective sentence of 8 years and 8 months’ imprisonment was manifestly inadequate and that there were errors in the orders for concurrency and cumulation as well as in the application of section 6E of the Sentencing Act 1991. The appeal centred on whether the individual sentences were manifestly inadequate, and whether the orders of concurrency and cumulation, along with the judge’s application of section 6E, had resulted in a manifestly inadequate total effective sentence.

The primary legal issues for the Court of Appeal to determine were whether the individual sentences imposed were manifestly inadequate, whether the orders of concurrency and cumulation resulted in a manifestly inadequate total effective sentence, and whether the trial judge had failed to apply section 6E of the Sentencing Act 1991. The Crown contended that the individual sentences were lenient and that the orders for concurrency and cumulation, along with the judge’s approach to section 6E, led to a total effective sentence that did not adequately reflect the seriousness of the offences, the need for community protection, specific and general deterrence, and the significant childhood deprivation and trauma experienced by Hum.

In its reasoning, the Court of Appeal found that while the individual sentences were lenient, they were not manifestly inadequate. However, the Court identified errors in the orders for concurrency and cumulation and in the application of section 6E, which resulted in a total effective sentence that was manifestly inadequate. The Court emphasised the need for the total effective sentence to reflect the gravity of the offences and the considerations outlined in section 5A of the Sentencing Act 1991. The Court allowed the appeal, setting aside the original sentence and imposing a new total effective sentence of 11 years and 8 months’ imprisonment, with appropriate orders for concurrency and cumulation and proper application of section 6E.

The final orders of the Court of Appeal were to substitute the original sentence of 8 years and 8 months’ imprisonment with a new total effective sentence of 11 years and 8 months’ imprisonment. The Court provided detailed reasons for the resentencing, taking into account the need for community protection, specific and general deterrence, and the significant childhood deprivation and trauma experienced by Hum. The Court’s decision underscored the importance of ensuring that the total effective sentence appropriately reflects the seriousness of the offences and the relevant sentencing considerations.

Orders