CRIMINAL LAW – Sentencing – Crown Appeal – Rape – Aggravated Burglary – Sentence of 4 years’ imprisonment for rape and 3 years’ imprisonment for aggravated burglary manifestly inadequate – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years imprisonment manifestly inadequate – Re-sentenced to 6 years and 6 months’ imprisonment on the count of rape and 4 years and 6 months’ imprisonment on the count of aggravated burglary with a total effective sentence of 9 years – Non-parole period of 6 years.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr G J C Silbert SC Mr B L Sonnet
Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent
Mr P F Tehan QC Mr N Goetz
Michael J Gleeson & Associates
ASHLEY JA REDLICH JA KELLAM JA:
On 10 September 2008 the respondent pleaded guilty in the County Court to all counts on two presentments. On the first presentment, the respondent was sentenced to 3 years’ imprisonment on one count of armed robbery (count 1) and 4 years’ imprisonment on one count of rape (count 2). On the second presentment, the respondent was sentenced to 3 years’ imprisonment on one count of aggravated burglary (count 1), 18 months’ imprisonment on one count of indecent assault (count 2) and 12 months’ imprisonment on one count of recklessly cause serious injury (count 3). When handing down sentence, the sentencing judge stated as follows:
The sentence on the first presentment is a period of four years.[1] I cumulate the two years of the sentence on the second presentment on the sentence of two [sic] years. This means that the head sentence is a sentence of six years and I order that you serve a non parole period of four years.
[1]This appears to have been on the basis that all of the sentences on the first presentment were to be served concurrently as is the presumption under the Sentencing Act 1991 (Vic).
The record of the court’s order reflects the above statement notwithstanding the fact that after handing down her sentence, and following a suggestion from the prosecutor as to the appropriate form of the order, her Honour indicated that she would treat the sentence on count 2 of the first presentment as the base sentence and would order that two years of the sentence on count 1 of the second presentment be cumulated on the base sentence.[2] By either form of order[3] that resulted in a total effective sentence of 6 years’ imprisonment. It was directed that the respondent serve a minimum of 4 years’ imprisonment before becoming eligible for parole.
2The order contain other errors including a direction that there be a minimum sentence of four years…
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.
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Details
AGLC
DPP v Maynard [2009] VSCA 129
Case
[2009] VSCA 129
Decision Date
CaseChat Overview and Summary
In the case of Director of Public Prosecutions v Maynard, the respondent appealed the sentence handed down by the County Court of Victoria, which found him guilty of rape and aggravated burglary. The Director of Public Prosecutions appealed the sentence, arguing it was manifestly inadequate. The appeal was heard in the Victorian Court of Appeal, where the sentence was reviewed and ultimately re-determined.
The court was tasked with determining whether the original sentence of four years' imprisonment for rape and three years' imprisonment for aggravated burglary, with a total effective sentence of six years and a non-parole period of four years, was manifestly inadequate. The court also had to consider whether the appeal court should re-sentence the respondent in light of the original sentence being manifestly inadequate.
The court considered the severity of the crimes committed, the need for general deterrence, and the principles of sentencing outlined in the Sentencing Act 1991. The court found that the original sentence was indeed manifestly inadequate, as it did not appropriately reflect the seriousness of the crimes or the need for deterrence. In re-sentencing the respondent, the court imposed a sentence of six years and six months' imprisonment for rape and four years and six months' imprisonment for aggravated burglary, with a total effective sentence of nine years and a non-parole period of six years. The court emphasised the need for general deterrence and the importance of ensuring sentences reflect the gravity of the crimes committed.
In light of the above, the court allowed the appeal, quashed the original sentence, and imposed the new sentence as outlined above.