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DPP v McInnes

DPP v McInnes

Case [2017] VSCA 374 13 December 2017

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0214

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JACOB KERR THOMAS McINNES	Respondent

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JUDGES:	WHELAN, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 December 2017
DATE OF JUDGMENT:	13 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 374
JUDGMENT APPEALED FROM:	DPP v McInnes [2017] VCC 1284 (Judge Lawson, 7 September 2017)

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CRIMINAL LAW – Crown Appeal – Sentence – Rape – Respondent sentenced to community correction order with conditions – Whether sentence manifestly inadequate – Whether sentence with custodial component should have been imposed – Whether residual discretion should be exercised – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr C B Boyce SC	John Cain, Solicitor for Public Prosecutions
For the Respondent	Ms L A Taylor QC with Ms A Brennan	Victoria Legal Aid

WHELAN JA:

I have read in draft the reasons for judgment of Priest and Beach JJA.
They have set out in detail the circumstances of the offence, the submissions made on the plea hearing, the sentencing judge’s reasons, and the submissions made on this appeal. These reasons assume knowledge of those matters.
There are a number of matters which I wish to add to the matters they have set out. They are:
(1)In his record of interview the respondent admitted that he had had sex with SB without her consent and that she had been asleep. Otherwise, the account of the circumstances which he gave in the record of interview was not entirely consistent with the facts set out in the prosecution opening which was tendered on the plea. There were assertions which I would describe as attempts to minimise the offending, and they were repeated to the consultant psychiatrist, Dr Adam Deacon, and were also raised by the respondent in the course of the pre-sentence assessment conducted by the Specialised Offender Assessment and Treatment Service (‘SOATS’) of Corrections Victoria. This led the clinicians who prepared the pre-sentence assessment and recommendations report to express concern at the possibility of minimisation.
(2)The concern of the clinicians referred to in relation to minimisation, together with other characteristics of the offending and the respondent’s background, including poor insight into how to manage his risk, problems with self-awareness and in coping with stress, and engagement in maladaptive coping strategies, led to an assessment of the risk of re-offending by SOATS at moderate-low, notwithstanding the fact that the respondent has no prior or subsequent offending history. The report is very detailed and comprehensive and it culminates in a number of recommendations including that the respondent undertake a particular offending behaviour program called the ‘Better Lives Program’. The report points out that in order to undertake this program in the community a Community Correction Order (‘CCO’) of at least 18 months and preferably 2 years would be required. In order to undertake the program in prison a sentence of at least 18 months would be required. The report assessed the respondent as suitable to undertake…

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 McInnes

Details

AGLC: DPP v McInnes [2017] VSCA 374
Case: [2017] VSCA 374
Decision Date: 13 December 2017

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v McInnes was heard in the Court of Appeal. The appeal was brought by the Director of Public Prosecutions against the sentence imposed on the respondent, who was convicted of rape. The Crown sought to argue that the sentence of a community correction order with conditions was manifestly inadequate and that a sentence with a custodial component should have been imposed. The Court was asked to consider whether the sentence should be quashed and replaced with a more appropriate sentence.

The primary legal issue before the Court was whether the sentence imposed on the respondent was manifestly inadequate. The Crown argued that the sentence did not adequately reflect the seriousness of the offence, nor did it provide sufficient punishment, deterrence, or rehabilitation. The Court was also required to determine whether the residual discretion should be exercised to impose a sentence with a custodial component. The Court needed to consider the principles of sentencing for rape, the relevant statutory framework, and the circumstances of the case.

The Court of Appeal found that the sentence imposed on the respondent was not manifestly inadequate. The Court considered the seriousness of the offence, the impact on the victim, and the need for punishment, deterrence, and rehabilitation. While acknowledging that the offence was of a serious nature, the Court found that the sentence imposed did reflect the gravity of the crime and provided adequate measures for punishment, deterrence, and rehabilitation. The Court held that the sentence did not fall outside the range of sentences that a properly directed sentencing judge could have imposed. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the Court beyond the dismissal of the appeal and the upholding of the original sentence.

Orders