DPP v Shields - [2005] VSCA 150

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 46 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
PHILIP CHARLES SHIELDS

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JUDGES:	VINCENT and NETTLE, JJ.A. and OSBORN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 June 2005
DATE OF JUDGMENT:	3 June 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 150

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Criminal law – Sentence – Crown Appeal – Commission of indecent act with a child under the age of 16 years (5 counts) – Maintaining a sexual relationship with a child under 16 years of age (1 count) – Principles upon which Crown Appeals decided – Whether sentence manifestly inadequate – Total effective sentence imposed in breach of s. 27(2) of the Sentencing Act 1991 – Principle of double jeopardy – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr L.C. Carter	Verhoeven & Curtain Pty. Ltd.

VINCENT, J.A.:

The respondent pleaded guilty in the County Court at Bairnsdale, on 17 January 2005, to six counts of the commission of an indecent act with a child under the age of 16 years (counts 1 to 5 on the presentment), and one count of maintaining a sexual relationship with a child under the age of 16 years (count 6). Counts 1 to 5 relate to offences registrable as class 2 offences under the Sexual Offenders Registration Act 2004 and count 6 involves a class 1 offence under that Act.

After hearing a plea in mitigation of penalty, the learned sentencing judge imposed a sentence of imprisonment of three months upon the respondent in respect of each of counts 1 to 5 and a sentence of imprisonment of three years on count 6. His Honour directed that one month of the sentence imposed on count 1 be served cumulatively upon that imposed on count 6, and two months of the sentences imposed on each of counts 2 to 5 inclusive be served concurrently with each other and the sentence imposed on count 6. This created a total effective sentence of three years and five months' imprisonment of which his Honour ordered that the service of two years and eight months be suspended for a period of two years, leaving a period of immediate incarceration of nine months. He further directed that it be entered into the records that the respondent had been sentenced as a serious sexual offender in respect of counts 2, 3, 4 and 5.

The Director has appealed against these sentences on two grounds:

“1.that the individual sentences and the total effective sentence are each manifestly inadequate; and
2.that the total effective sentence was imposed in breach of s.27(2) of the Sentencing Act 1991.”

Although the principles upon which this Court must act in considering a Crown appeal against sentence are well known, it is, I think, desirable in view of the conclusion at which I have arrived, to refer to the statement of them set out in the judgment of Charles J. in

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 Shields

Details

AGLC: Director of Public Prosecutions v Shields [2005] VSCA 150
Case: [2005] VSCA 150
Decision Date: 3 June 2005

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Shields was heard in the Court of Appeal. The dispute centred on the adequacy of the sentence imposed on the defendant, who was convicted of multiple counts of committing indecent acts with a child under 16 years of age, as well as maintaining a sexual relationship with a child under 16. The Crown appealed the sentence, contending that it was manifestly inadequate and breached statutory provisions concerning the total effective sentence.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate, and if it contravened the statutory requirement in section 27(2) of the Sentencing Act 1991. The Crown argued that the sentence failed to reflect the seriousness of the crimes, and the total effective sentence was less than the prescribed minimum term. The defendant, on the other hand, maintained that the sentence was appropriate given the circumstances.

The court examined the principles guiding Crown appeals, particularly the principle of double jeopardy, which restricts the ability to appeal a sentence once it has been determined by a trial judge. However, the court found that in this instance, the sentence was manifestly inadequate and in breach of the statutory requirements. The total effective sentence imposed was less than the minimum term prescribed by law, and the court concluded that the trial judge had not adequately considered the severity of the offences. Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing.

The court did not specify the new sentence to be imposed, leaving that matter to be determined by the trial court upon resentencing. The court did, however, provide clear guidance on the principles to be considered in determining an appropriate sentence for the crimes committed.

Orders