[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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JUDGES
REDLICH, PRIEST JJA and ROBSON AJA
WHERE HELD
MELBOURNE
DATE OF HEARING
3 September 2013
DATE OF JUDGMENT
21 November 2013
MEDIUM NEUTRAL CITATION
[2013] VSCA 330
JUDGMENT APPEALED FROM
DPP v [Hugh Jones], (Judge Howard, County Court of Victoria at Melbourne)
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CRIMINAL LAW – Director’s appeal against sentence – Multiple sexual offences against 3 victims – Offences of persistent violence and cruelty – Representative and rolled up counts – Worst category of case – No challenge to individual sentences – Cumulation orders inadequate – Principle of proportionality infringed – Failure to reflect total criminality – Appeal allowed – Sentence increased to 16 years’ imprisonment with non-parole period of 12 years.
SENTENCE – Competency of Director’s appeal – Whether Director can appeal against ‘total effective sentence’ – Whether Director’s appeal was on appeal against sentence for the purposes of s 287 of theCriminal Procedure Act 2009 – Principle of totality considered – Whether ‘manifest inadequacy’ constitutes error – Ludeman v The Queen (2010) 31 VR 606; Lacey v Attorney General (Qld) (2011) 24 CLR 573 considered.
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Appearances:
Counsel
Solicitors
For the Appellant
Mr J R Champion SC with Ms F L Dalziel
Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent
Mr P F Tehan QC with Mr S P Kennedy
Tait Lawyers
REDLICH JA PRIEST JA:
Introduction
For the reasons that follow, we would allow the Director’s appeal in this case, and would re-sentence the respondent so as to produce a total effective sentence of 16 years’ imprisonment upon which we would fix a non-parole period of 12 years.
The charges and the impugned sentences
On 17 February 2012 the respondent pleaded guilty in the County Court to 16 charges relating to offences of a sexual and violent nature. There were three victims — JW, with whom the respondent had been in a de facto relationship, and JW’s teenaged son, JN, and daughter, CN. The offences occurred between December 2008 and March 2010 after the respondent had moved into a house with the victims.
With respect to the daughter, CN, there were two representative charges of incest[2] (charges 1 and 2); one of producing child pornography[3] (charge 3); two representative charges of indecent act with a 16 or 17 year old child under care, supervision or authority[4] (charges 4 and 5); two charges of procuring an act of sexual penetration with a 16 or 17 year old child under care, supervision or authority[5] (charges 6 and 7); and one charge of intentionally causing serious injury[6] (charge 8).
[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.
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AGLC
DPP v Jones (a Pseudonym) [2013] VSCA 330
Case
[2013] VSCA 330
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against the sentence imposed on a man, referred to as Jones, who had been convicted of multiple sexual offences against three victims. The appeal was heard in the Court of Appeal, which was required to determine the competency of the Director's appeal against the sentence and the appropriate approach to assessing the adequacy of the sentence. The Director contended that the sentence was manifestly inadequate and that the principle of proportionality had been infringed, resulting in a failure to reflect the total criminality of the case. The appeal raised significant questions about the limits of appellate jurisdiction in relation to sentencing and the application of the principle of totality.
The court considered whether the Director had the authority to appeal against the sentence for the purposes of section 287 of the Criminal Procedure Act 2009. The Director argued that the appeal was not limited to individual sentences but could address the 'total effective sentence'. The court examined precedents such as Ludeman v The Queen and Lacey v Attorney General (Qld) to determine whether a 'manifest inadequacy' in the sentence constituted an error sufficient to warrant an appeal. The court concluded that the Director's appeal was competent and that the principle of proportionality must be applied to ensure that the sentence reflects the totality of the offender's criminal conduct.
The court found that the sentence imposed on Jones was inadequate and did not adequately reflect the totality of his criminal conduct. The court determined that the trial judge's approach to cumulation and the principle of proportionality was flawed, leading to an outcome that did not appropriately account for the persistent and violent nature of the offences. The court increased the sentence to 16 years' imprisonment with a non-parole period of 12 years, finding this to be a more appropriate reflection of the gravity and totality of Jones's criminal conduct. This decision underscores the importance of considering the principle of proportionality in sentencing and the appellate court's role in ensuring that sentences are commensurate with the totality of the offender's criminal behaviour.