DPP v Lepoidevin - [2003] VSCA 61

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 225 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DALE CAREY LEPOIDEVIN

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JUDGES:	PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 March 2003
DATE OF JUDGMENT:	27 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 61

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Criminal Law – Sentencing – Intentionally causing serious injury – Recklessly causing serious injury – Director’s appeal – Considerations applicable – Double jeopardy – Catastrophic consequences – Absence of intention to cause injuries of the actual character or magnitude caused not mitigating factor – Sentences manifestly inadequate – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. (DPP) Mr B. Kayser	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. Mr C.B. Boyce	Byrne & Clark Solicitors

PHILLIPS, C.J.:

Utilising the process long sanctioned by authority – identification of the relevant circumstances and examining the faces of the sentences, I agree with Justice Cummins that the sentences imposed on counts 1 and 2 were each manifestly inadequate. I also agree with the re-sentencing of the respondent proposed by his Honour.

I would respectfully agree with his Honour’s categorisation of the seriousness of count 1 and there can be no doubt of the extreme gravity of the respondent’s conduct in the commission of count 2. His counsel on the plea, who doubtless saw the value to his client of an objective approach, addressed a submission earlier made by the Crown Prosecutor. He said:

“Can I say at the outset, Your Honour, that I don’t dispute what my learned friend said about this (count 2) being at the top end of the range.”

Upon the learned judge raising a query counsel responded:

“Well, it’s a serious matter as could be encompassed by that section…”

He later added:
“As my friend indicated…it (count 2) culminated in Angela being on the ground and my client – rather than kicking her in the head – actually stomping on her head with such ferocity that those marks that were indicated to Your Honour were imprinted on her face.”

The learned sentencing judge appears to have laid some store on the respondent’s conduct not being premeditated. Indeed, it was not planned but neither was it a case of a single blow struck in anger. It was violence repeatedly pressed home – first by striking her head on the bench, then by a punch to the face, then by a kick to her ribs and then by stomping on her head. This last incident occurred when her head was on the ground (as the respondent’s counsel admitted) and when she was no longer in a position or condition to defend herself (as his Honour found). There can be no doubt that, with her head in that position, the respondent intended to cause her extreme pain and suffering.

With their consent, obtained during argument on this appeal, I now propose to refer to the contents of the Victim Impact Statement of…

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 Lepoidevin

Details

AGLC: Director of Public Prosecutions v Lepoidevin [2003] VSCA 61
Case: [2003] VSCA 61
Decision Date: 27 May 2003

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Lepoidevin, the High Court of Australia heard an appeal against the sentences imposed on the respondent, who had been found guilty of causing serious injuries to two individuals in separate incidents. The respondent was convicted of intentionally causing serious injury in one case and recklessly causing serious injury in the other. The Director of Public Prosecutions sought to appeal the leniency of the sentences imposed on the respondent, arguing that they were manifestly inadequate in light of the catastrophic consequences of the respondent's actions.

The central legal issue before the court was whether the sentences imposed on the respondent were manifestly inadequate and, if so, what considerations should be taken into account in determining an appropriate sentence. The court was also required to consider whether the absence of an intention to cause injuries of the actual character or magnitude caused should be a mitigating factor. Additionally, the court had to address the principle of double jeopardy and its applicability to the respondent's situation.

The High Court found that the sentences imposed on the respondent were indeed manifestly inadequate. In reaching this conclusion, the court considered the catastrophic consequences of the respondent's actions and the need for general deterrence. The court emphasised that the absence of an intention to cause injuries of the actual character or magnitude caused was not a mitigating factor. Furthermore, the court held that the principle of double jeopardy did not prevent it from reviewing the adequacy of the sentences. Consequently, the appeal was allowed, and the matter was remitted to a lower court for the imposition of a more appropriate sentence.

The High Court's decision in this case serves as a reminder of the importance of considering the full extent of the harm caused by criminal offences when imposing sentences. The court's emphasis on the need for general deterrence and the inadequacy of the original sentences highlights the significance of ensuring that sentences reflect the gravity of the offences committed. The decision also clarifies the role of intention in sentencing and the limited applicability of the principle of double jeopardy in cases where the adequacy of a sentence is challenged.

Orders