DPP v Klep - [2006] VSCA 98

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
FRANK GERARD KLEP

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JUDGES:	BUCHANAN, VINCENT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2006
DATE OF JUDGMENT:	19 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 98	2^nd Revision – 8 May 2006

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Criminal Law – Sentencing – Crown appeal – 14 counts of indecent assault against adolescent boys by offender in charge of school infirmary – Offences committed 30 years’ ago – Total effective sentence of 36 months’ imprisonment and suspension 24 months of a sentence for a period of three years manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Hargreaves (Tony) & Partners

BUCHANAN, J.A.:

Between 1973 and 1979 the respondent, a Salesian priest, was in charge of the infirmary at the Salesian Catholic college in Sunbury.

In October 2005 the respondent was arraigned in the County Court and pleaded guilty to a presentment containing 14 counts of indecent assault. The victims of the assaults were adolescent boys in the infirmary. After a plea the respondent was sentenced on each count to be imprisoned for terms varying from two months' imprisonment to 20 months' imprisonment. With a degree of cumulation a total effective sentence of 36 months' imprisonment was produced. The sentencing judge directed that 24 months of the sentence be suspended for a period of three years.

In 1994 the respondent was convicted on four counts of indecently assaulting two youths in their mid-teens. The offending occurred between 1975 and 1977. The respondent received an intensive correction order. As a result of those convictions the respondent was to be sentenced on all the counts on which he was presented in 2005 as a serious sexual offender pursuant to the provisions of Part 2A of the Sentencing Act 1991.

The Director has appealed against the sentence on the sole ground that it was manifestly inadequate. In particulars of this ground it is alleged that the sentencing judge failed to have regard to certain factors, gave insufficient weight to some factors and gave too much weight to other factors.

The counts concerned assaults upon 11 victims. The respondent supervised the students in the infirmary and slept in a nearby room. The victims were students at the College.

Count 1 concerned a day pupil at the College who was 15 years old. When he was in the infirmary the respondent stroked the inside of his leg and touched and rubbed his genitals. The respondent undid the complainant's trousers and fondled, kissed, licked and sucked his penis. The respondent told the student not to tell anyone as he could get into trouble. Count 2 concerned the same victim on the same day. When the complainant was in the music room the respondent touched and rubbed him in the region of his genitals. The victim…

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 Klep

Details

AGLC: Director of Public Prosecutions v Klep [2006] VSCA 98
Case: [2006] VSCA 98
Decision Date: 19 April 2006

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Klep, the respondent was convicted in the County Court for a series of indecent assaults against adolescent boys, committed over a period spanning three decades while he held a position of trust as the school infirmary's overseer. The Crown appealed the sentence imposed by the County Court, arguing that the total effective sentence of 36 months’ imprisonment, with an additional 24 months suspended for a period of three years, was manifestly inadequate. The Court of Appeal was tasked with determining whether the sentence imposed was appropriate in light of the severity and nature of the crimes committed.

The primary legal issue before the Court was whether the sentence imposed by the County Court was manifestly inadequate, considering the gravity of the offences. The Court had to consider the nature of the offences, the role of the offender, the impact on the victims, and the principles of sentencing as outlined in relevant legislation and case law. The Court was also required to balance the principle of proportionality with the need for deterrence and denunciation in sentencing decisions.

The Court of Appeal, in its judgment, found that the sentence imposed was manifestly inadequate. The Court noted that the respondent had abused his position of trust, committing multiple acts of indecent assault over a prolonged period. The Court emphasised the severe impact of these crimes on the victims, many of whom were adolescent boys at the time. The Court also highlighted the importance of ensuring that sentences reflect the seriousness of the offences and the need for appropriate deterrence and denunciation. Based on these considerations, the Court concluded that the sentence imposed was manifestly inadequate and ordered a new sentencing hearing to determine a more appropriate sentence.

Orders