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DPP v Macarthur

DPP v Macarthur

Case [2019] VSCA 71 8 April 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0125

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JAMIE EVAN MACARTHUR	Respondent

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JUDGES:	FERGUSON CJ, KAYE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 March 2019
DATE OF JUDGMENT:	8 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 71
JUDGMENT APPEALED FROM:	[2018] VCC 851 (Judge Lawson)

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SENTENCE – Rape – DPP appeal – Manifest inadequacy – Conviction on one count rape, two counts attempted rape, seventeen counts common assault, one count theft – Digital rape accompanied by violence in public in view of witnesses – Very serious example of offence – Respondent resentenced – DPP v Karazisis (2010) 31 VR 634, DPP v Walsh [2018] VSCA 172, DPP v Dalgliesh (2017) 349 ALR 37, Shrestha v The Queen [2017] VSCA 364, Bugmy v The Queen (2013) 249 CLR 571 applied – Sentencing Act 1991 s 5(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K Judd QC, Director of Public Prosecutions with Ms A Roodenburg	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr S Ginsbourg	Simon English Lawyers

FERGUSON CJ
KAYE JA
WEINBERG JA:

The respondent pleaded guilty, in the County Court, to eighteen charges of common assault, one charge of theft, one charge of rape, and two charges of attempted rape. He was sentenced to a total effective term of 7 years and 9 months’ imprisonment with a non-parole period of 5 years. The Director has appealed that sentence to this Court on the single ground that the sentences imposed in respect of the charges of rape and attempted rape are manifestly inadequate.

The sentences imposed on the respondent by the County Court judge were structured as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 – 10 Common assault [pursuant to common law] 5 years’ imprisonment [Crimes Act 1958 (Vic) s 320] 12 months’ imprisonment (aggregate) 6 months

11 Theft [Crimes Act 1958 s 74(1)] 10 years’ imprisonment [Crimes Act 1958 (Vic) s 74(1)] See charge 1 See charge 1

12 – 14 Common assault [pursuant to common law] 5 years’ imprisonment [Crimes Act 1958 (Vic) s 320] See charge 1 See charge 1

15 Rape [Crimes Act 1958 s 38(1)] 25 years’ imprisonment [Crimes Act 1958 (Vic) s 38(2)] 5 years’ imprisonment Base

16 Common assault [pursuant to common law] 5 years’ imprisonment [Crimes Act 1958 (Vic) s 320] 3 months’ imprisonment 1 month

17 Attempted rape [Crimes Act 1958 (Vic) s 321M and s 38(1)] 20 years’ imprisonment [Crimes Act 1958 (Vic) s 321P and s 38(2)] 54 months’ imprisonment 12 months

18 Attempted rape [Crimes Act 1958 (Vic) s 321M and s 38(1)] 20 years’ imprisonment [Crimes Act 1958 (Vic) s 321P and s 38(2)] 54 months’ imprisonment 12 months

19 Common assault [pursuant to common law] 5 years’ imprisonment [Crimes Act 1958 (Vic) s 320] 6 months’ imprisonment 1 month

20 Common…

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 Macarthur

Details

AGLC: DPP v Macarthur [2019] VSCA 71
Case: [2019] VSCA 71
Decision Date: 8 April 2019

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Macarthur involved an appeal by the DPP against the sentence given to Macarthur, who had been convicted on one count of rape, two counts of attempted rape, seventeen counts of common assault, and one count of theft. The Court of Appeal was tasked with determining whether the original sentence was manifestly inadequate. The Court of Appeal considered several relevant cases and statutory provisions in reaching its decision.

The primary legal issue was whether the original sentence imposed by the trial judge was manifestly inadequate in light of the seriousness of the offences committed. The Court of Appeal applied the principles established in DPP v Karazisis, DPP v Walsh, DPP v Dalgliesh, Shrestha v The Queen, and Bugmy v The Queen, all of which emphasize the importance of ensuring that sentences reflect the gravity of the crimes committed. Additionally, the Court referred to Section 5(2)(b) of the Sentencing Act 1991, which requires that sentences for serious offences should not be manifestly inadequate.

The Court of Appeal found that the original sentence was indeed manifestly inadequate. It considered the particularly egregious nature of the rape offence, which was committed in public view and involved violence, making it a very serious example of the offence. The Court emphasised the need for sentences to appropriately reflect the gravity of such crimes and to provide adequate deterrence and denunciation. Consequently, the Court of Appeal resentenced Macarthur, taking into account the principles and authorities discussed.

The final orders of the Court of Appeal included the resentencing of Macarthur, ensuring that the new sentence more accurately reflected the seriousness of the offences committed. The Court also directed that the resentencing be carried out in accordance with the principles and authorities outlined in the judgment.

Orders