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DPP v Moses

DPP v Moses

Case [2009] VSCA 274 27 November 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 653 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
SHERWIN BONIFACE MOSES

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JUDGES	MAXWELL P, REDLICH JA and VICKERY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 January 2009
DATE OF JUDGMENT	27 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 274
JUDGMENT APPEALED FROM	R v Moses (Unreported, County Court of Victoria, Judge Parsons, 17 April 2008)

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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – False imprisonment and rape (5 counts) – Victim held at knifepoint in her own home – Imprisonment lasted 50 minutes – Successive rapes – Humiliation of victim – Whether premeditated – Whether genuine remorse – Total effective sentence of 6y 8m and non-parole period of 5y manifestly inadequate – Appeal allowed – Resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D Trapnell SC	Ms K Richter, Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest QC with Mr M Croucher	Greg Thomas

MAXWELL P
REDLICH JA
VICKERY AJA:

The respondent (‘M’) pleaded guilty in the County Court to one count of false imprisonment and five counts of rape involving the same victim. At the time of the offences, M was aged 28. He is now 32. The complainant (‘P’) was a 22 year old student.

The offending took place over a period of approximately 50 minutes, between 6:00 am and 6:50 am on a Sunday morning in 2006, in a flat which P shared with others. The false imprisonment count covers the entire period. The successive rapes took place during that period. Counts 2 and 3 related to specific incidents, while counts 4 to 6 were representative counts. M was sentenced as follows.

Count

Offence

Maximum

Sentence imposed

Cumulation

1

False imprisonment

10y

12m

4m

2

Rape

25y

5y

Base

3

Rape

25y

5y

4m

4

Rape

(representative – penile penetration of mouth)

25y

5y

4m

5

Rape

(representative – lingual penetration of vagina)

25y

5y

4m

6

Rape

(representative – penile penetration of vagina)

25y

5y

4m

Total effective sentence (‘TES’): 6y, 8m

Non-parole period (‘NPP’) : 5y

M was sentenced on counts 4, 5 and 6 as a serious sexual offender.

The Director of Public Prosecutions has appealed against the sentence pursuant to s 567A of the Crimes Act 1958 (Vic), on the ground that the individual sentences, the total effective sentence and the non-parole period were all manifestly inadequate in the circumstances.

The circumstances of the offending

The Director contended that these were ‘extremely grave’ examples of the offence of rape. In order to put that contention and the issues raised on the appeal in proper context, it is necessary first to recount in some detail the circumstances of the attack. The prosecution’s factual summary, given at the commencement of the plea, provided the factual foundation for the sentencing. That summary appears as an appendix to these reasons.

Submissions on appeal

On the plea in mitigation, the Crown Prosecutor helpfully provided the sentencing judge with a document…

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 Moses

Details

AGLC: DPP v Moses [2009] VSCA 274
Case: [2009] VSCA 274
Decision Date: 27 November 2009

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Moses, the appellant, the Director of Public Prosecutions, sought to appeal the sentence imposed on the respondent, who was convicted of multiple offences including false imprisonment and rape. The sentencing took place in the Supreme Court of Victoria. The respondent had held a woman at knifepoint in her own home for 50 minutes, during which he raped her on five separate occasions. The court was tasked with determining whether the original sentence of 6 years and 8 months imprisonment, with a non-parole period of 5 years, was manifestly inadequate.

The legal issues before the court included the severity of the crimes committed, the lack of premeditation, and the extent of remorse shown by the respondent. The court had to consider the totality of the circumstances, including the impact on the victim, the nature of the offences, and whether the sentence reflected the seriousness of the crimes. Additionally, the court examined the respondent's expressed remorse and whether it was genuine, which could be a mitigating factor in sentencing.

The court found that the original sentence did not adequately reflect the gravity of the crimes committed. The respondent's actions were severe, with the victim being held at knifepoint and subjected to repeated rapes. The court held that the sentence was manifestly inadequate as it did not sufficiently address the harm caused to the victim or deter future offences. Consequently, the court allowed the appeal and resentenced the respondent. The new sentence imposed was 10 years imprisonment, with a non-parole period of 7 years.

Orders