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DPP v Patterson

DPP v Patterson

Case [2009] VSCA 222 2 October 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 669 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
KYLE PATTERSON

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JUDGES:	MAXWELL P, REDLICH JA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 January 2009
DATE OF JUDGMENT:	2 October 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 222
JUDGMENT APPEALED FROM:	R v Patterson (Unreported, County Court of Victoria, Judge Duckett, 2 May 2008).

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CRIMINAL LAW – Appeal – Sentencing – Crown appeal – Rape, indecent assault – Intellectually disabled offender – Applicability of Verdins principles – Serious sexual offender – Use of violence – Prior convictions – Lack of insight, empathy, remorse – Community protection paramount consideration – Need for Court to assess risk to community – Adequacy of reasons for sentence – Sentence of three years four months, with minimum of two years, manifestly inadequate – Resentenced – Sentencing Act 1991 (Vic) s 6D(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C J Ryan	Ms K Richter, Solicitor for Public Prosecutions
For the Respondent	Mr S Gillespie-Jones with Mr R J Sarah	Paul Vale Criminal Law

MAXWELL P
REDLICH JA
VICKERY AJA:

On 2 May 2008, the respondent (‘KP’) was convicted after a trial on two counts of rape, one count of indecent assault and one count of recklessly causing injury. He was sentenced as follows:

COUNT	OFFENCE	MAXIMUM	SENTENCE	CUMULATION
3	Indecent assault	10y	1y	3m
4	Rape (digital)	25y	1y 6m	12m
7	Recklessly causing injury	5y	6m	1m
8	Rape (penile)	25y	2y	Base
Total effective sentence: 3y 4m Non-parole period: 2y. KP was sentenced as a serious sexual offender on count 8.

The Director of Public Prosecutions now appeals against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period were all manifestly inadequate in the circumstances. Paragraphs (i) and (j) of the Director’s notice of appeal contend that the sentencing judge:

(i) failed to have sufficient regard to aggravating features of the offending, and in particular –
·      the age of the victim,
·      the prior criminal history of the offender,
·      that the offending occurred whilst the offender was on bail for other offences,
·      the lack of remorse shown by the offender, and
·      the high risk of re-offending;
(j) gave too much weight to mitigating factors concerning the offender, and in particular –
·      the mild intellectual disability of the offender,
·      the offender’s lack of emotional or family support, and
·      the impact of a custodial term on the offender’s mental health.

For reasons which follow, we would allow the appeal and resentence KP as set out in paragraph 53 below.

Details of the offending

At the time of the offences, KP was 30 years old. He had been a boarder for about nine months in a house occupied by GS. The offending took place after GS had left the house to spend the rest of the weekend with his children. KP was alone in the house with GS’s partner…

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 Patterson

Details

AGLC: DPP v Patterson [2009] VSCA 222
Case: [2009] VSCA 222
Decision Date: 2 October 2009

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against the sentence imposed on the defendant, Patterson. The defendant had been convicted of rape and indecent assault, and the appeal concerned the adequacy of the original sentence. The Court of Appeal was tasked with reviewing the sentence in light of the Verdins principles, which emphasise the importance of community protection in sentencing serious sexual offenders. The court also needed to consider the defendant's intellectual disability, prior convictions, and lack of insight, empathy, and remorse.

The legal issues central to the appeal were whether the original sentence was manifestly inadequate, and if the primary judge had adequately considered the principles and factors relevant to sentencing serious sexual offenders. The court had to determine whether the sentence imposed appropriately reflected the need for community protection and whether it adequately punished the defendant for his crimes. The appeal also required the court to assess whether the reasons provided by the primary judge were sufficient to justify the sentence.

The Court of Appeal found that the original sentence of three years and four months, with a minimum of two years, was manifestly inadequate. The court held that the primary judge had failed to adequately consider the principles and factors relevant to sentencing serious sexual offenders. The defendant's intellectual disability, prior convictions, and lack of insight, empathy, and remorse were significant factors that should have been given more weight. The court emphasised that in cases involving serious sexual offences, the risk to the community is a paramount consideration, and the primary judge had not adequately assessed this risk. The court also noted that the reasons provided by the primary judge did not sufficiently justify the sentence imposed.

The Court of Appeal ultimately decided to resend the defendant. The court found that the original sentence did not appropriately reflect the need for community protection or adequately punish the defendant for his crimes. The court imposed a new sentence, which was not disclosed in the extract, but noted that it was to be determined in accordance with section 6D(a) of the Sentencing Act 1991 (Vic). The court's decision underscores the importance of adequately considering all relevant factors when sentencing serious sexual offenders and the need for sentences to appropriately reflect the principles of community protection and punishment.

Orders