DPP v Ripper - [2006] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 181 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DAMIEN PAUL RIPPER

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JUDGES:	VINCENT and NETTLE, JJ.A. and KING, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2006
DATE OF JUDGMENT:	14 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 282

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CRIMINAL LAW – Sentencing – Director's appeal – Principles – Recklessly causing injury – Victim young child – Protection of children – Appeal allowed – Respondent re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mrs C.M. Quin	Ms A. Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson, Q.C.	Victoria Legal Aid

VINCENT, J.A.:

I agree in the disposition of this matter proposed by King AJA and I do so for the reasons advanced by her in her judgment.

NETTLE, J.A.:

I agree for the reasons stated by King AJA that the appeal be allowed and that the respondent be re-sentenced as she proposes.

KING A.J.A.:

On 24 May 2006 the respondent pleaded guilty in the County Court at Bairnsdale to one count of causing serious injury recklessly. The offence carries a maximum penalty of 15 years’ imprisonment. After a plea in mitigation conducted that day the learned sentencing judge sentenced the respondent to two years’ imprisonment with a non-parole period of 18 months and a declaration was made that the respondent had served 64 days of pre-sentence detention. The learned sentencing judge further made an order that the respondent undergo a forensic procedure pursuant to s. 464ZV(2) of the Crimes Act 1958.

Crown Appeals – the principles

The principles which govern appeals by the Director of Public Prosecutions are set out in the oft-referred cases of R v Clarke[1] and R v Johnston.[2] In Clarke Charles JA, with whom Winneke P and Hayne JA concurred, stated the relevant rules in respect of Crown Appeals as follows:
[1][1996] 2 VR 520 at 522.
[2](2004) 10 VR 85 at 96-7.

“1.An appeal by the Crown should be brought only in “the rare and exceptional case” to establish some point of principle.
2.Occasions may arise for the bringing of a Crown Appeal. Those occasions would be as follows:
(a) where a sentence reveals such manifest inadequacy or

inconsistency in sentencing standards as to constitute error in principle;
(b)where it is necessary for a Court of Criminal Appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;
(c)to enable the courts to establish and maintain adequate standards of punishment for crime;
(d)to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;
(e)to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and
(f)to ensure so far as the subject-matter permits that there will be uniformity in sentencing.”

As the court explained in R v Clarke, the reason that there should be Crown Appeals, only…

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 Ripper

Details

AGLC: Director of Public Prosecutions v Ripper [2006] VSCA 282
Case: [2006] VSCA 282
Decision Date: 14 December 2006

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Ripper, the respondent was convicted of recklessly causing injury to a young child. The Director of Public Prosecutions sought to appeal the sentence imposed on the basis that it was manifestly inadequate. The matter was heard in the Court of Appeal, where the primary judge’s sentencing principles were reviewed.

The court was required to determine whether the sentence imposed was manifestly inadequate and, if so, whether the appeal should be allowed. The appeal hinged on the severity of the offence, the harm caused to the victim, and the need to protect children from such harm. The court considered the principles of sentencing as they apply to offences involving recklessness and harm to children, and whether these principles were appropriately applied in the sentencing of the respondent.

The Court of Appeal found that the sentence imposed was manifestly inadequate. The court emphasised the importance of protecting children from harm and the need for sentences to reflect the seriousness of offences involving recklessness towards children. The court noted that the sentencing judge had failed to adequately consider the principles of sentencing in relation to the harm caused and the need for general deterrence. The appeal was allowed, and the respondent was re-sentenced to a term of imprisonment that better reflected the seriousness of the offence and the need for protection of children.

The court ordered that the respondent be re-sentenced to a term of imprisonment of six years, with a non-parole period of four years. This sentence was intended to reflect the seriousness of the offence and the need to protect children from similar harm in the future.

Orders