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DPP v NOP

DPP v NOP

Case [2011] TASCCA 15 27 October 2011

Statutory Interpretation

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[2011] TASCCA 15

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: DPP v NOP [2011] TASCCA 15

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  NOP

FILE NO/S:  659/2011
DELIVERED ON:  27 October 2011
DELIVERED AT:  Hobart
HEARING DATE:  11 October 2011
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law - Appeal and new trial - Appeal against sentence - Appeals by Crown – Other matters – Rape of child aged 6 by a youth aged 15 years and 6 months with a reduced mental age – Youth released and proceedings adjourned without conviction - Sentencing principles - General deterrence and denunciation - Whether sentence manifestly inadequate.

Youth Justice Act 1997 (Tas), ss48, 49.
Attorney-General v Smith [2002] TASSC 10, applied.
Bowden v R [1968] Tas SR (NC) 15; Austin v R [1971] Tas SR 227; Thompson v R, Serial No A21/1971; R v Laredo Serial No A82/1977; George v R [1986] Tas R 49; Stonehouse v R A90/1993; R v Everett, R v Phillips [1994] TASSC 39, considered.
Aust Dig Criminal Law [3537]

REPRESENTATION:

Counsel:
             Appellant:  J Hartnett
             Respondent:  K Edwards, T Jago SC
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission

Judgment Number: [2011] TASCCA 15
Number of paragraphs: 45

Serial No 15/2011
File No 659/2011

DIRECTOR OF PUBLIC PROSECUTIONS v NOP

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
TENNENT J
WOOD J
27 October 2011

Orders of the Court

That the appeal is allowed.

That the sentence imposed on the respondent on 18 July 2011 is quashed insofar as it was ordered that the proceedings be adjourned for 12 months on condition that the respondent be of good behaviour for that period and it was ordered that no convictions be imposed.

That in lieu of the quashed portion of the sentence:
·convictions are recorded; and
·it is ordered that the respondent serve a period of nine months' detention wholly suspended on condition that for a period of two years from 18 July 2011 he not commit an offence that if committed by an adult could be punishable by imprisonment.

That the orders made by the learned sentencing judge on 18 July 2011 as to probation and under the Community Protection (Offender Reporting) Act be confirmed.

Serial No 15/2011
File No 659/2011

DIRECTOR OF PUBLIC PROSECUTIONS v NOP

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

EVANS J
27 October 2011

The appellant appeals against the sentence imposed on the respondent following his plea of guilty to charges of rape and indecent assault.

At the time of the crimes the respondent was aged 15 years and six months, and his female victim was six years of age. The sentencing hearing proceeded on the unchallenged basis that when he committed the crimes the respondent's mental age was about ten years eight months.

The learned sentencing judge, Blow J, sentenced the respondent under the provisions of the Youth Justice Act 1997. The sentence was:

· A probation order for two years, with a…

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 NOP

Details

AGLC: DPP v NOP [2011] TASCCA 15
Case: [2011] TASCCA 15
Decision Date: 27 October 2011

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed by a sentencing judge on the respondent, a youth aged 15 years and 6 months with a reduced mental age, who had been convicted of the rape of a 6-year-old child. The original sentence involved an adjournment of proceedings for 12 months with no conviction recorded, conditional on the respondent's good behaviour.

The central legal issue before the Court of Appeal was whether the sentence imposed was manifestly inadequate, particularly in light of the principles of general deterrence and denunciation of serious criminal conduct. The Court was required to consider whether the sentencing judge had given sufficient weight to these principles when determining the appropriate outcome for such a grave offence committed by a young offender.

The Court of Appeal reasoned that the original sentence, which avoided a conviction and imposed a relatively lenient period of good behaviour, failed to adequately reflect the seriousness of the offence and the need for general deterrence. The judges applied the principle that for offences of this nature, particularly those involving child victims, the need to denounce such conduct and deter others from similar behaviour is paramount. Consequently, the Court allowed the appeal, quashed the original sentencing orders that deferred conviction and imposed a period of good behaviour, and substituted a sentence that included the recording of convictions and a nine-month detention period, wholly suspended. This suspended sentence was conditional on the respondent not committing a further imprisonable offence for two years. The orders relating to probation and offender reporting were confirmed.

Orders

Orders of the court

1. That the appeal is allowed.

2. That the sentence imposed on the respondent on 18 July 2011 is quashed insofar as it was ordered that the proceedings be adjourned for 12 months on condition that the respondent be of good behaviour for that period and it was ordered that no convictions be imposed.

3. That in lieu of the quashed portion of the sentence:·

convictions are recorded; and·

it is ordered that the respondent serve a period of nine months' detention wholly suspended on condition that for a period of two years from 18 July 2011 he not commit an offence that if committed by an adult could be punishable by imprisonment.

4. That the orders made by the learned sentencing judge on 18 July 2011 as to probation and under the Community Protection (Offender Reporting) Act be confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

DPP v NOP [2011] TASCCA 15

Most Recent Citation

McCullough v OBG and MJW [2012] TASSC 29

Cases citing this decision · 19 of 19 shown

Director of Public Prosecutions v JAP
[2025] TASCCA 9

…d: Director of Public Prosecutions v JSP [2020] TASCCA 3 Director of Public Prosecutions v King [2020] TASCCA 8 Director of Public Prosecutions v NOP [2011] TASCCA 15 Director of Public Prosecutions v Oh Marris [2023] TASCCA 1 Director of Public Prosecutions v WLNH [2017] TASCCA 15…
Lockwood v Tasmania
[2025] TASCCA 6 Para 41

…on and retribution, in that it re-asserts societal values and gives proper weight to the harm done to victims ( Director of Public Prosecutions v NOP [2011] TASCCA 15 per Evans J at [41], cited in Connelly v Tasmania (above), Wood J at [23]-[24]). 40 In sentencing this crime and setting the non-parole period, the s…
Lockwood v Tasmania
[2024] TASCCA 15 Para 41

…on and retribution, in that it re-asserts societal values and gives proper weight to the harm done to victims ( Director of Public Prosecutions v NOP [2011] TASCCA 15 per Evans J at [41], cited in Connelly v Tasmania (above), Wood J at [23]-[24]). 40 In sentencing this crime and setting the non-parole period, the s…
SRR v Tasmania
[2023] TASCCA 6 Para 41

…on and retribution, in that it re-asserts societal values and gives proper weight to the harm done to victims ( Director of Public Prosecutions v NOP [2011] TASCCA 15 per Evans J at [41] cited in Connelly v Tasmania (above) Wood J at [23]- [24]). 20 In sentencing this crime, and setting the non-parole period, the t…
R v BC (No 4)
[2021] ACTSC 119 Para 41

…unciation, thereby reinforcing society's values and expectations of its members. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at [41] as that of 'appropriate vindication and to assuage informed public outrage'.…
Ahjh v Tasmania
[2021] TASCCA 2

…e effect to the community's denunciation and rejection of such conduct. The sentence should also provide a means of vindicating the victim. DPP v NOP [2011] TASCCA 15; Harington per Pearce J."…
Director of Public Prosecutions v Fletcher-Jones
[2019] TASCCA 18 Para 8

…risonment for three months fails to meet the need for denunciation in the sense of "appropriate vindication and to assuage public outrage": DPP v NOP [2011] TASCCA 15 per Evans J at [4]. It is as if to create the perception, it is submitted, that the crime committed against the complainant does not warrant much of…
Auton v Tasmania
[2019] TASCCA 17 Para 15

…s values and expectations of its members: Ryan v The Queen [2001] HCA 21, 206 CLR 267 at 302 [118] per Kirby J; Director of Public Prosecutions v NOP [2011] TASCCA 15 at [41]. The community would rightly condemn the appellant's ill-treatment of the child. It was the kind of sustained and cruel conduct towards a par…
Barnes v Entresz
[2018] TASSC 45 Para 8

…The use to which a conviction might be put is relevant. That "use" is really an impact in the sense referred to in s 9. In DPP v NOP [2011] TASCCA 15, Evans J discussed the use to which a conviction could be put. In that case the sentencing judge had not recorded convictions against a respondent charged with the ra…
Director of Public Prosecutions v The Queen
[2018] TASCCA 10 Para 2

…there remained a need for general deterrence, denunciation, and protection of the public. Reference was made to Director of Public Prosecutions v NOP [2011] TASCCA 15, involving a crime of rape and indecent assault of a child committed by a 15-year old youth. The sentencing judge had imposed a probation order witho…
Director of Public Prosecutions v Karklins
[2018] TASCCA 6 Para 2

…to general deterrence. The crimes required denunciation in the sense of 'appropriate vindication and to assuage public outrage', Evans J in DPP v NOP [2011] TASCCA 15 at [4]. This sentencing objective is to vindicate the rights of victims and reinforce the values of the community: DPP v Neethling (2009) 22 VR 466 p…
Director of Public Prosecutions v Broad
[2018] TASCCA 5 Para 2

…to general deterrence. The crimes required denunciation in the sense of 'appropriate vindication and to assuage public outrage' Evans J in DPP v NOP [2011] TASCCA 15 at [4]. This sentencing objective is to vindicate the rights of victims and reinforce the values of the community: DPP v Neethling (2009) 22 VR 466 p…
JWM v Tasmania
[2017] TASCCA 22 Para 6

…e effect to the community's denunciation and rejection of such conduct. The sentence should also provide a means of vindicating the victim. DPP v NOP [2011] TASCCA 15; Harington per Pearce J.…
Director of Public Prosecutions v Harington
[2017] TASCCA 4 Para 4

…J at 118; Crowley v R [2003] TASSC 147 per Crawford J (as he then was) at [14]. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at [41] as that of 'appropriate vindication and to assuage informed public outrage'."…
Director of Public Prosecutions (Acting) v Morgan
[2015] TASCCA 11 Para 10

…to general deterrence. The crimes required denunciation in the sense of "appropriate vindication and to assuage public outrage", Evans J in DPP v NOP [2011] TASCCA 15 at [4]. This sentencing objective is to vindicate the rights of victims and reinforce the values of the community: DPP v Neethling (2009) 22 VR 466 p…
CJP v Tasmania
[2015] TASCCA 9 Para 1

…118; Crowley v R [2003] TASSC 147 per Crawford J (as he then was) at par[14]. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at par[41] as that of 'appropriate vindication and to assuage informed public outrage'. 62 The vulnerability of children and the need for protection is…
Baldock v Tasmania
[2015] TASCCA 3 Para 5

…nd marked, in a responsible way, the proper feelings of outrage the commission of such a crime would raise in the minds of the community: DPP v NOP [2011] TASCCA 15 at [41]. A crime of this nature ordinarily also requires a sentence which deters like conduct on the part of others, even for those without a record fo…
Director of Public Prosecutions v STU
[2012] TASCCA 7 Para 1

…at 118; Crowley v R [2003] TASSC 147 per Crawford J (as he then was) at par[14]. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at par[41] as that of "appropriate vindication and to assuage informed public outrage".…
McCullough v OBG and MJW
[2012] TASSC 29 Para 1

…umstances to those here. His Honour declined to interfere with the sentence. Counsel also referred to a comment by Evans J in the matter of DPP v NOP [2011] TASCCA 15 at par[42] where his Honour said:…

View all 19 citing cases →

Cases cited in this decision · 4 of 4 shown

Dobson v Jackson
[2009] TASSC 118 Para 1

…I mention is that courts should be cautious about ascribing undue weight to a person's mental age. In the portion of the judgment in Dobson v Jackson [2009] TASSC 118, that is not reported on reference is made to the evidence of a consultant psychiatrist, Dr Robert Adler. In that case there was evidence to the effe…
Attorney-General v Smith
[2002] TASSC 10 Para 1

…The significance of recording a conviction was addressed by the Court of Criminal Appeal in Attorney-General v Smith [2002] TASSC 10. That case involved an appeal against the failure of the sentencing judge to record a conviction against an offender, aged 33, who had pleaded guilty to an assault that involved thro…
Thompson v R, Unreported 21/1971 and George v The Queen
[1986] TASSC 19

…of actual imprisonment could fulfil the requirement of deterrence in the case of rape (see Thompson v R, Unreported 21/1971 and George v The Queen [1986] TASSC 19; (1986) Tas R 49, both offenders being 15 years of age and of unblemished character otherwise). … R v Causby (1984) Tas R 54 is another instance of ser…
R v Everett and Phillips
[1994] TASSC 39 Para 1

…R v Everett, R v Phillips [1994] TASSC 39, and (1994) 72 A Crim R 442, was an appeal by the Attorney-General against the leniency of sentences imposed upon offenders, aged 18 and 19, for aggravated armed robbery. In the course of his decision, Cox J said at par[13]:…

Legislation cited in this decision · 3

Youth Justice Act 1997 (TAS)
48, 49 3 mentions (from Para 1)
Community Protection (Offender Reporting) Act 2005 (TAS)
1 mention
Sentencing Act 1997 (TAS)
1 mention (from Para 1)