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DPP V Sims

DPP V Sims

Case [2004] VSCA 129 23 July 2004

Sentencing

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.85 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DAVID LESLIE SIMS

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 2004
DATE OF JUDGMENT:	23 July 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 129	2^nd Revision 25 August 2004

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CRIMINAL LAW - Sentencing - Director's appeal - Aggravated burglary, rape (2 counts) and indecent assault - Female victim asleep alone in her residence - No victim impact statement - Offender disinhibited by alcohol and drugs - Early plea of guilty, great remorse, and admissions to police - No relevant prior conviction - Good prospects of rehabilitation - Unlikely to re-offend - 38 days' pre-sentence detention - Total effective sentence of 2 years 9 months' imprisonment wholly suspended held (by majority) not manifestly inadequate - Sentencing Act 1991, ss.6D(a), 6E.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr P.G. Priest, Q.C. and Mr M.J. Croucher	Paul A. Vale Pty.

BATT, J.A.:

On 23 March 2004 the respondent, David Leslie Sims, who was born on 26 May 1968, pleaded guilty on arraignment in the County Court at Melbourne to one count of aggravated burglary (count 1), two counts of rape (counts 2 and 4) and one count of indecent assault (count 3). The burglarious intent alleged was to commit rape and the factor that was pleaded as aggravating the burglary was knowledge that a person was in the part of the building concerned. The form of penetration in the rape counts was respectively lingual and digital penetration of the vagina. The maximum penalty for aggravated burglary and for rape is imprisonment for 25 years and for indecent assault is imprisonment for ten years. The respondent admitted three previous convictions in 1995 for drug offences resulting, after appeal, in a fine of $1,000.

The prosecutor opened the case and then his Honour heard a plea in mitigation of penalty during which 12 exhibits were tendered, including two psychological reports.

On 1 April 2004 his Honour recorded convictions and sentenced the respondent to be imprisoned for 18 months on each of counts 1, 2 and 4 and for nine months on count 3 and in substance directed that six months of the sentence imposed on each of counts 2 and 4 and three months of that imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, so that the total effective sentence was imprisonment for a term of two years and nine months. He ordered that that term be wholly suspended for a period of three years from 1 April 2004. Although his Honour stated that in making his decision to suspend the whole sentence of imprisonment he took into account the fact that the respondent was to be sentenced as a serious (sexual) offender on counts 3 and 4, he did not comply with the requirement in s.6F(1)…

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.

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Details

AGLC: Director of Public Prosecutions v Sims [2004] VSCA 129
Case: [2004] VSCA 129
Decision Date: 23 July 2004

CaseChat Overview and Summary

The appellant, the Director of Public Prosecutions, sought an appeal against the sentence imposed on the respondent, Sims, who had pleaded guilty to aggravated burglary, rape (two counts), and indecent assault. The facts of the case involved Sims committing these offences against a female victim who was asleep alone in her residence. Sims had no relevant prior convictions and expressed great remorse, having made an early plea of guilty and admissions to the police. Sims had been disinhibited by alcohol and drugs at the time of the offence. The trial judge sentenced Sims to a total effective sentence of two years and nine months' imprisonment, wholly suspended. The appellant argued that the sentence was manifestly inadequate.

The central legal issue before the court was whether the sentence imposed on Sims was manifestly inadequate. The court considered whether the sentence was unjust or excessively lenient in light of the gravity of the offences committed. The court was required to balance the principles of deterrence, denunciation, and rehabilitation against the circumstances of the offender and the nature of the offences.

The court held, by a majority, that the sentence was not manifestly inadequate. The court found that Sims' early guilty plea, his remorse, and the absence of a victim impact statement were significant mitigating factors. The court also considered the disinhibiting effects of alcohol and drugs, the offender's prospects of rehabilitation, and the low likelihood of re-offending. The court concluded that the sentence imposed was appropriate and did not fall outside the range of acceptable sentences for the crimes committed.

The final orders of the court were that the appeal against the sentence imposed on Sims was dismissed. The wholly suspended sentence of two years and nine months' imprisonment was upheld as not manifestly inadequate.

Orders