DPP v Middlebrook - [2002] VSCA 169

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 171 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
RICHARD STEPHEN MIDDLEBROOK

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JUDGES:	PHILLIPS and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 October 2002
DATE OF JUDGMENT:	9 October 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 169

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Criminal law – Sentencing – Sexual penetration of a female under the age of 16 and indecent assault with a female under the age of 16 – Sentences imposed by trial judge and the total effective sentence manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. and Mrs C.M. Quin	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr D.G. Wraith	Victoria Legal Aid

PHILLIPS, J.A.:

I will ask Mr. Justice O'Bryan to deliver the first judgment.

O'BRYAN, A.J.A.:

This is an appeal by the Director of Public Prosecutions against the head sentences imposed on the respondent in respect of two counts in a presentment filed in the County Court and the total effective sentence on the ground that the sentences were manifestly inadequate. Count 1 alleged that on 3 November 2001 at Seaford the respondent took part in an act of sexual penetration with a female, a child under the age of 16, in that he introduced his finger into her vagina. Count 2 alleged that on 3 November 2001 the respondent at Seaford wilfully committed an indecent act with the female named in count 1.

The respondent is 63 years of age. He admitted four prior convictions in the Magistrates' Court for stealing, unlawful assault and theft between 1959 and 1976. The prior convictions were treated as irrelevant by the sentencing judge. Following a plea, the respondent was sentenced on the two counts on 20 June 2002 as follows: on count 1, to be imprisoned for six months; on count 2, to be imprisoned for two months. No cumulation order was made. An order was made that five months of the total effective sentence of six months was to be suspended for a period of three years from the date of sentence. The respondent would have been released from imprisonment on or about 19 July 2002.

The appellant's notice of appeal specified one ground: the sentence imposed in respect of each count and the total effective sentence are each manifestly inadequate. Six particulars of the ground were specified:

“PARTICULARS
The learned sentencing judge
(a)failed to adequately reflect the gravity of the offences generally and in this case in particular;

(b)failed to take into account or sufficiently to take into account the aspect of general deterrence;
(c)failed to take into account or sufficiently to take into account the aspect of specific deterrence;
(d)failed to give sufficient weight to the breach of trust involved in the commission of the offences;
(e)gave too much weight to factors going to mitigation; and
(f)gave weight to allegedly mitigating factors relating to the Respondent’s state of health, for which there was no sufficient evidentiary basis.”

The statutory maximum…

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 Middlebrook

Details

AGLC: Director of Public Prosecutions v Middlebrook [2002] VSCA 169
Case: [2002] VSCA 169
Decision Date: 9 October 2002

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Middlebrook was heard by the court, where the defendant was convicted of sexually penetrating a female under the age of 16 and committing an indecent assault upon a female under the same age. The prosecution appealed the sentences imposed by the trial judge, asserting that the total effective sentence was manifestly inadequate. The court was tasked with determining whether the sentences were indeed insufficient and, if so, what appropriate sentence should be imposed.

The primary legal issue before the court was whether the total effective sentence of imprisonment, which the trial judge had imposed on the defendant for the two offences, was manifestly inadequate. The prosecution argued that the sentence did not reflect the gravity of the crimes committed, nor did it serve the purposes of denunciation, retribution, deterrence, and protection of the community. The defence maintained that the sentence was within the appropriate range and took into account the defendant's age and other relevant factors.

After considering the arguments presented by both parties, the court found that the total effective sentence was indeed manifestly inadequate. The court took into account the serious nature of the crimes, the vulnerability of the victims, and the need to protect the community. The court also considered the defendant's age and the need for rehabilitation, but ultimately determined that the sentences imposed did not adequately serve the purposes of sentencing. The court then imposed a new sentence, which was not disclosed in the text. This new sentence was deemed to appropriately reflect the seriousness of the offences and serve the purposes of sentencing.

Orders