DPP v Husar

[2011] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0672
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ZANAK JOHN HUSAR	Respondent

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JUDGES:	ASHLEY, BONGIORNO and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 March 2011
DATE OF JUDGMENT:	16 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 70
JUDGMENT APPEALED FROM:	R v Husar (Unreported, County Court of Victoria, Judge Gaynor, 13 May 2009)

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CRIMINAL LAW – Sentencing – Director’s appeal – Sexual penetration of a child under ten (5 counts), indecent act with a child under 16 (6 counts), false imprisonment, intentionally causing injury, threat to kill – Respondent pleaded not guilty – No remorse – Total effective sentence of seven years with non-parole period of four years and six months – Individual sentences of 15 months and two years on sexual penetration counts manifestly inadequate – DPP v Grabovac [1998] 1 VR 664 – Respondent’s health – Double jeopardy – Discretion not to intervene – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Dr G J Lyon SC with Mr G M Hughan	Victoria Legal Aid

ASHLEY JA:

1. I agree with Hansen JA, for the reasons which his Honour gives, that the Director’s appeal should be dismissed.  I wish to add two matters.

1. First, in my opinion this appeal had, from the very beginning, extremely limited prospects of success.  Although complaint could legitimately be made about the way in which the judge structured the sentences, the total effective sentence very improbably demonstrated such inadequacy as was required for a Director’s appeal to succeed.  That this was so was emphasized by several statements made by the prosecutor on the plea – statements which, I should make clear, cannot be criticised.

1. I note that the prisoner filed notice of applications for leave to appeal against both conviction and sentence on 26 May 2009.  The Director’s appeal was dated 10 June 2009 and was filed on 17 June.  I draw no conclusion from that chronology, or from what I consider was the weakness of the Director’s appeal.  There is occasion, however, to emphasize the heavy burden which is cast upon the Director in determining to lodge an appeal against sentence.

1. Second, the consequence of the appeal is that at least some individually  inadequate sentences are being permitted to stand.  No doubt they will form part of the next Sentencing Snapshot for the particular offence.  This illustrates yet again the pitfalls of sentencing statistics.

BONGIORNO JA:

1. I agree with Hansen JA that this Crown appeal should be dismissed for the reasons his Honour has expressed.

HANSEN JA:

1. Zanak John Husar (‘the respondent’) was tried in the County Court on a

presentment containing 16 counts to which he pleaded not guilty.  He was acquitted on counts 13 and 16, and convicted of the remaining 14 counts.  The offences occurred in December 2005 when the respondent was aged 57.  He was aged 61 at the date of sentence,…