DPP v Papworth - [2005] VSCA 88

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 360 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
TREVOR JAMES PAPWORTH

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JUDGES:	CALLAWAY, BATT and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 April 2005
DATE OF JUDGMENT:	20 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 88

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Criminal law – Sentencing – Crown appeal – Period for service of notice of appeal expiring on a Saturday – Notice served on following day – Whether service within time – Three counts of committing indecent act with child under 16 and one count of incest – Prior offending - Respondent to be sentenced as serious sexual offender on all counts – Protection of the community – Whether disproportionate sentence warranted – Double jeopardy – Sentence of four years' imprisonment with non-parole period of two years increased to six years' imprisonment with non-parole period of three years - Crimes Act 1958, s.567A(1), (3) – Interpretation of Legislation Act 1984, s.44(3) - Sentencing Act 1991, Part 2A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr P.F. Tehan, Q.C. with Mr K.J. Doyle	Patrick W. Dwyer Solicitors

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Buchanan, J.A. I agree in the orders his Honour proposes for the reasons that he gives. It is unnecessary in this case to impose a disproportionate sentence, provided full weight is given to the injunction in s.6D(a) of the Sentencing Act 1991, the breach of trust involved in the offences and the other circumstances of aggravation.

It is understandable that R. v.Barnes[1] was not reported. Too much of it was taken up with the application for leave to appeal against conviction and the principal point raised by that application had been decided in R. v. Coffey[2]. It is, nevertheless, an example of one of those rare cases in which this Court has found it necessary to impose a disproportionate sentence pursuant to s.6D(b) of the Sentencing Act. The considerations attending such an exercise were discussed in my judgment[3], in which Buchanan and Eames, JJ.A. agreed. Reference was made to the difficulties of prediction, to the leading case, R. v. Connell[4], and to the desirability, where a disproportionate sentence is imposed, of fixing a non-parole period that is shorter than usual when considered as a percentage of the head sentence[5]. The judgment may be of assistance to sentencing judges.

BATT, J.A.:

[1][2003] VSCA 156.

[2](2003) 6 V.R. 543.

[3]At [20]-[33].

[4][1996] 1 V.R. 436.

[5]See especially [22] and [33].

I agree with Buchanan, J.A.

BUCHANAN, J.A.:

The Director has appealed, pursuant to s.567A(1) of the Crimes Act 1958, against a total effective sentence of four years' imprisonment with a non-parole period of two years which was imposed upon the respondent when he pleaded guilty to a presentment containing three counts of committing an indecent act with…

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 Papworth

Details

AGLC: Director of Public Prosecutions v Papworth [2005] VSCA 88
Case: [2005] VSCA 88
Decision Date: 20 April 2005

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed by the County Court on Papworth, who was convicted of three counts of committing an indecent act with a child under 16 and one count of incest. The appeal was heard by the Court of Appeal, which comprised of Byrne JA, Nettle JA, and Ryan AJA. The Crown sought to increase the sentence imposed on Papworth, arguing that the original sentence did not adequately reflect the seriousness of the offending or protect the community. The appeal hinged on the interpretation of several statutory provisions and the principles of sentencing.

The primary legal issue was whether the Crown's notice of appeal was served within the required time, despite being served on the day following the expiration of the appeal period, which fell on a weekend. Additionally, the court considered whether the original sentence was manifestly inadequate and whether a more severe penalty was warranted to protect the community and reflect the gravity of the offences. The court also needed to determine whether the increased sentence would breach the principle of double jeopardy.

The Court of Appeal held that the Crown's notice of appeal was served within the time allowed, as the relevant statutory provisions permitted service on the next business day when the appeal period expired on a weekend. Regarding the sentencing, the court found that the original sentence did not adequately reflect the seriousness of the offences or protect the community. The court concluded that the respondent should be sentenced as a serious sexual offender and increased the sentence to six years' imprisonment with a non-parole period of three years. The court emphasised that the increased sentence did not breach the principle of double jeopardy, as it was based on the totality of the offending rather than merely repeating the original sentence.

The Court of Appeal allowed the Crown's appeal, set aside the original sentence, and imposed a sentence of six years' imprisonment with a non-parole period of three years. The court also ordered that Papworth be classified as a serious sexual offender for the purposes of supervision and monitoring under the Sentencing Act.

Orders