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DPP v Keller (a pseudonym)

DPP v Keller (a pseudonym)

Case [2021] VSCA 334 3 December 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0058

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
BENJAMIN KELLER (a pseudonym)[1]	Respondent

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

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JUDGES:	MAXWELL P, KAYE and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2021
DATE OF JUDGMENT:	3 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 334
JUDGMENT APPEALED FROM:	DPP v Keller (a pseudonym) (Unreported, County Court of Victoria, Judge Leighfield, 29 April 2021)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Competency – Notice of appeal – Whether valid – Respondent sentenced on four charges – Aggregate sentence on two charges – Separate sentences on other charges – Notice of appeal referred only to ‘the sentence imposed’ – Failed to specify which sentence or sentences under appeal – Appeal incompetent – Leave to amend refused – Criminal Procedure Act 2009 ss 3, 287, 288, Supreme Court (Criminal Procedure) Rules 2017 r 1.15, Sentencing Act 1991 ss 9, 44 – Ludeman v The Queen (2010) 31 VR 606, DPP v Jones (2013) 40 VR 267, DPP v Currie [2021] VSCA 272 applied.

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Rape, indecent assault, assault, destroy property – Offences committed against domestic partner – Total effective sentence 12 months’ imprisonment combined with 3 year community correction order – Whether manifestly inadequate – Exceptional circumstances – Respondent expressed immediate remorse – Substantial delay between offending and sentence – Significant rehabilitation during period of delay – Strong work history – Utilitarian value of plea during COVID-19 pandemic – Sentence within range – R v Merrett (2007) 14 VR 392, Bourne v The Queen [2011] VSCA 159, Worboyes v The Queen [2021] VSCA 169 applied.

WORDS AND PHRASES – ‘sentence’.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms E Ruddle QC with Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr C Carr SC with Mr J R Murphy	Dribbin & Brown Criminal Lawyers

MAXWELL P
KAYE JA
SIFRIS JA:

The respondent pleaded guilty in the County Court to one charge each of common assault, destroying property, rape and indecent assault. After a plea presented on his behalf, the respondent was sentenced to a total effective sentence of one year imprisonment with a 3 year community correction order (‘CCO’). That sentence was constituted as follows:

Charge on Indictment K12195424.1	Offence	Maximum	Sentence	Cumulation
1	Common assault[2]	5 years	3-year CCO	N/A
2	Destroying property[3]	10 years	3-year CCO	N/A
3	Rape[4]	25 years	12 months’ imprisonment (aggregate); 3 year CCO	Nil
4	Indecent assault[5]	10 years	12 months’ imprisonment (aggregate); 3 year CCO	Nil
Total effective sentence:			1 year imprisonment 3 year CCO (300 hours unpaid community work, supervision, treatment and rehabilitation)
Non-parole period:			N/A
Pre-Sentence detention declaration pursuant to s 18(1) of the

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 Keller (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Keller (a pseudonym) [2021] VSCA 334
Case: [2021] VSCA 334
Decision Date: 3 December 2021

CaseChat Overview and Summary

The case of DPP v Keller (a pseudonym) involves the Crown appealing the sentence imposed on the respondent for various offences committed against his domestic partner. These offences included rape, indecent assault, assault, and destruction of property. The trial judge sentenced the respondent to an aggregate sentence of 12 months imprisonment combined with a three-year community correction order. The Crown argued that this sentence was manifestly inadequate, while the respondent contended that the sentence was within the appropriate range.

The primary legal issue before the court was whether the Crown’s appeal was validly initiated. The court noted that the notice of appeal referred only to ‘the sentence imposed’ without specifying which of the sentences was under appeal. The court held that this was insufficient to comply with statutory requirements. Despite an application for leave to amend the notice of appeal, the court refused to allow the amendment, finding that it did not meet the statutory criteria for leave to amend.

In reaching its decision, the court applied relevant statutes and case law, including the Criminal Procedure Act 2009, the Sentencing Act 1991, and several precedent cases. The court determined that the failure to specify the particular sentence or sentences under appeal rendered the appeal incompetent. Consequently, the appeal was dismissed, and the original sentence imposed by the trial judge was upheld.

Orders