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DPP v Monteiro

DPP v Monteiro

Case [2009] VSCA 105 20 May 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 895 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

BENJAMIN CALEB MONTEIRO

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JUDGES:	MAXWELL P, BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2009
DATE OF JUDGMENT:	20 May 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 105	1^st Revision 20 May 2009, paras [15] and [34]

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Criminal law – Sentence – Crown appeal – Intentionally causing serious injury – Sentence of two years and six months’ imprisonment with suspension of 21 months manifestly inadequate – Appeal dismissed in exercise of discretion – Whether current sentencing practices adequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G J L Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P G Priest QC with Mr T Kassimatis	Paul Vale Criminal Law

MAXWELL P:

I would dismiss this appeal. Subject to what follows, I would do so for the reasons given by Buchanan JA and by Nettle JA. Like their Honours, I consider that the sentence was manifestly inadequate but would dismiss the appeal in the exercise of discretion.

The applicable sentencing range

As was pointed out in R v MacNeil-Brown,[1] the submission on a Director’s appeal that a sentence is ‘manifestly inadequate’ is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion in the circumstances of the case. At the request of the Court, counsel for the Director provided a written submission identifying the sentencing range which – according to the Director – was available to the sentencing judge in sentencing this offender for these offences. I have found it of considerable assistance in this case to have had a clear identification by the Director of what the applicable sentencing range is said to be.
[1][2008] VSCA 190 [9] (Maxwell P, Vincent and Redlich JJA).

The applicable sentencing range identified by the Director was as set out in the table below. The Director’s submission on range was helpfully supported by copies of the relevant Sentencing Snapshots published by the Sentencing Advisory Council,[2] and by a series of sentencing decisions both at first instance and on appeal.[3] (The submission stated that the figures had not been adjusted to allow for the reduction which would be applied on account of double jeopardy were this Court to allow the appeal and re-sentence the respondent).
[2]Sentencing trends for causing serious injury intentionally in the higher courts of Victoria, Sentencing Snapshot No 12, September 2006; Sentencing trends for causing serious injury intentionally in the higher courts of Victoria, 2002-03 to 2006-07; Sentencing Snapshot No 39, February 2008.
[3]The Queen v Wyley [2009] VSCA 17; DPP v Zullo [2004] VSCA 153; R v Barcham [2001] VSCA 215; R v Huynh [2004] VSCA 156; DPP v Eli [2008] VSCA 209; The Queen v Duncan [2009] VCC 0116 (Reasons for Sentence).

APPLICABLE SENTENCING RANGE

Count…

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 Monteiro

Details

AGLC: DPP v Monteiro [2009] VSCA 105
Case: [2009] VSCA 105
Decision Date: 20 May 2009

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions (Queensland) v Monteiro, the appellant sought to appeal the sentence imposed on the respondent by the District Court of Queensland. The respondent had been convicted of intentionally causing serious injury to a person. The sentence handed down was two years and six months’ imprisonment, with 21 months suspended, which the Crown deemed manifestly inadequate. The appeal was heard in the Queensland Court of Appeal.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the District Court was manifestly inadequate and whether it was appropriate to exercise the Court's discretion to dismiss the appeal. The Crown argued that the sentence was inadequate and did not reflect the seriousness of the offence or serve the purposes of denunciation and deterrence. The respondent maintained that the sentence was appropriate given the circumstances of the case.

The Court of Appeal considered the principles of sentencing and the purposes of punishment, including denunciation, deterrence, rehabilitation, and retribution. The Court held that the sentence imposed was manifestly inadequate and did not reflect the gravity of the offence. The Court noted that the respondent had intentionally caused serious injury to a person, which was a serious breach of the peace and warranted a substantial custodial sentence. The Court further noted that the purposes of denunciation and deterrence were not adequately served by the sentence imposed. However, the Court exercised its discretion to dismiss the appeal, finding that the current sentencing practices were adequate and that there were no substantial and compelling circumstances that warranted the exercise of the Court's discretion to increase the sentence.

No further orders were made.

Orders