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DPP v Short

DPP v Short

Case [2006] VSCA 120 6 June 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 11 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
FRANK HARRY SHORT

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JUDGES:	BUCHANAN, VINCENT and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2006
DATE OF JUDGMENT:	6 June 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 120	1^st Revision – 6 June 2006

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CRIMINAL LAW – Crown appeal – Rape – Common assault – Causing injury intentionally – Respondent’s second trial – Discretion of sentencing judge’s in situations of a re-trial – R.H. McL v. R. (2000) 203 C.L.R. 452 – Individual sentences handed down in first trial inadequate – Appeal allowed – Respondent re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.A. Gamble	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Respondent	Mr I.D. Hill, Q.C. with Mr M.J. Croucher	Galbally & O’Bryan

BUCHANAN, J.A.:

I agree with Vincent, J.A., for the reasons he has stated, that the appeal should be allowed and the respondent re-sentenced as his Honour proposes.

VINCENT, J.A.:

This is an appeal by the Director of Public Prosecutions against the sentences imposed upon the respondent in the County Court at Melbourne, on 8 December 2005, on four counts of rape of his former female partner (counts 6, 8, 9 and 10), one count of common assault (count 2) and one count of causing injury intentionally to her (count 7).

The Background

The victim of the various offences, [V], commenced a relationship with the respondent, in mid 1998. There is no need to set out the detail of its history. It is sufficient to state that the material before the Court suggests that, at least during the latter part, there was considerable volatility in their interactions.

After they had been together for two years, they took up residence in a rented house in Keys Street, Beaumaris. Their cohabitation, and, in some senses, their relationship, ended in mid-March 2002, at which time it was agreed that V would continue living in the premises until she could make other arrangements and that the respondent would pay the rent in the meantime. He was conducting a business at Mount Buller and had commenced living there on a full time basis. On 1 September 2002, V moved to a house in Bodley Street, Beaumaris.

After V and the respondent ceased to live together, they continued to associate on a limited basis. They met from time to time, entered into other arrangements concerning accommodation and there were further arguments. In April 2002, for example, there was an incident in the course of which V stomped on the respondent’s foot. This occurred during an argument in an hotel bar and,

according to V, in consequence of threats made by the respondent. She disputed his contrary version of this incident and his assertion that the stomping caused his foot to bleed. On a subsequent occasion in the same bar, V stomped on the respondent’s foot a second time, during another argument which developed while they were watching a…

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 Short

Details

AGLC: DPP v FHS [2006] VSCA 120
Case: [2006] VSCA 120
Decision Date: 6 June 2006

CaseChat Overview and Summary

The case of DPP v Short involved the respondent, who was convicted in a second trial of rape and common assault, and sentenced for these offences. The Director of Public Prosecutions (DPP) appealed against the sentences, contending that they were inadequate and did not reflect the gravity of the crimes committed. The Court of Appeal was tasked with determining whether the sentencing judge had exercised their discretion appropriately when imposing sentences following the second trial.

The central legal issue was whether the sentencing judge had correctly exercised his discretion in sentencing the respondent in light of the principles established in R.H. McL v. R. (2000) 203 C.L.R. 452. The Court had to assess whether the sentences handed down in the first trial were inadequate, and if so, whether the new sentences imposed after the second trial were appropriate. The appeal hinged on whether the sentencing judge had sufficiently considered the seriousness of the offences and the need to ensure that the sentences reflected the gravity of the crimes and provided adequate deterrence.

The Court of Appeal held that the sentences imposed by the trial judge were inadequate and did not reflect the seriousness of the crimes. The Court found that the trial judge had failed to sufficiently consider the principles set out in R.H. McL v. R., particularly the need for sentences to reflect the gravity of the offences and to provide adequate deterrence. The Court of Appeal allowed the appeal, quashed the sentences imposed in the second trial, and remitted the matter back to the sentencing judge for re-sentencing. The Court emphasised the importance of ensuring that sentences adequately reflect the seriousness of the crimes and provide adequate deterrence.

In the final orders, the Court of Appeal allowed the appeal, quashed the sentences imposed in the second trial, and remitted the matter to the sentencing judge for re-sentencing. The Court stressed the importance of ensuring that sentences reflect the gravity of the crimes and provide adequate deterrence, in line with the principles established in R.H. McL v. R.

Orders