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
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- AGLC
- Director of Public Prosecutions v Shields [2005] VSCA 150
- Case
- [2005] VSCA 150
- Decision Date
CaseChat Overview and Summary
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
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