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DPP v Snow (a pseudonym)

DPP v Snow (a pseudonym)

Case [2020] VSCA 67 26 March 2020

Appeal

Sentencing

Recklessly cause serious injury

Plea of guilty

Manifestly inadequate sentence

Proportionality

Grave breach of trust

Discretion of mercy

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2019 0231

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
MICHAELA SNOW (a pseudonym)[1]	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the respondent and victim.

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JUDGES:	MAXWELL P, BEACH JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 March 2020
DATE OF JUDGMENT:	26 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 67
JUDGMENT APPEALED FROM:	DPP v [Snow] (Unreported, County Court of Victoria, Judge Allen, 11 November 2019)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Recklessly cause serious injury, sexual penetration of stepchild – Plea of guilty – Sentenced to 4 years’ imprisonment with non-parole period of 1 year – Whether sentence manifestly inadequate – Whether proportionate to objective gravity – Extremely serious offending – Victim aged 5 – Respondent was carer – Life-threatening injuries – Grave breach of trust – Powerful mitigating factors – Background of disadvantage, violence, sexual abuse – Moral culpability substantially reduced, general deterrence substantially moderated – Discretion of mercy exercised – Exceptional circumstances – More severe sentence not required – Appeal dismissed – Bugmy v The Queen (2013) 249 CLR 571 , Munda v The Queen (2013) 249 CLR 600, DPP v Miceli (1997) 94 A Crim R 327 applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Miss M Mahady and Ms A Roodenburg	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr I Hill QC with Mr M Dempsey	Tony Hargreaves and Partners

MAXWELL P
BEACH JA
CROUCHER AJA:

Summary

On 18 October 2017, the respondent (‘MS’) was at home alone, looking after her fiancé’s two small children, a girl aged five (‘K) and her younger brother. Suddenly, and inexplicably, MS attacked the five year old girl, causing life-threatening injuries to the girl’s liver and pancreas. She also penetrated K’s vagina with her finger, causing significant injury to her genitals.

MS subsequently pleaded guilty to one charge of causing serious injury recklessly[2] and one of sexual penetration of a step-child.[3] She was sentenced to two years on the first charge and three years on the second. With cumulation of one year, the total effective sentence was 4 years’ imprisonment. An unusually short non-parole period of one year was fixed.
[2]Contrary to s 17 of the Crimes Act 1958.
[3]Contrary to s 50D(1) of the Crimes Act 1958.

The Director of Public Prosecutions has appealed against the sentence on the ground of manifest inadequacy. Counsel for the Director accepted that the judge had properly taken into account the strong mitigating factors on which MS relied but submitted that, whatever the combined weight of those mitigating factors, the sentence arrived at was not reasonably open as it simply did not reflect the extreme seriousness of the offending.

This was, on any view, a most lenient sentence. The judge correctly described the…

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 Snow (a pseudonym)

Details

AGLC: DPP v Snow (a pseudonym) [2020] VSCA 67
Case: [2020] VSCA 67
Decision Date: 26 March 2020

CaseChat Overview and Summary

The case of DPP v Snow involves an appeal by the Director of Public Prosecutions against the sentence given to the respondent, Snow, who had pleaded guilty to charges of recklessly causing serious injury and sexual penetration of a child, specifically his five-year-old stepchild. The matter was heard and determined in the Court of Appeal. The central issue for the court was whether the sentence imposed was manifestly inadequate and whether it was proportionate to the objective gravity of the crimes committed. The respondent had been sentenced to four years’ imprisonment, with a non-parole period of one year, which the Crown argued was too lenient given the severity of the crimes.

The court considered the extreme seriousness of the offences, the young age of the victim, and the fact that the respondent was in a position of care and trust. The injuries sustained by the victim were life-threatening, and the court acknowledged the gravity of the breach of trust. The court also examined the mitigating factors presented, including the respondent’s background of disadvantage, exposure to violence, and sexual abuse, which were said to have substantially reduced his moral culpability and the need for general deterrence. Despite these mitigating factors, the court recognised the need for a sentence that reflects the community's condemnation of such serious offences.

Upon thorough consideration, the court concluded that while the sentence was indeed lenient, it was not manifestly inadequate in the circumstances. The court highlighted the exercise of discretion of mercy in the sentencing and recognised the exceptional circumstances that contributed to the respondent's moral culpability. Ultimately, the court found that a more severe sentence was not warranted. The appeal was dismissed, and the original sentence was upheld, with the court's decision aligning with precedents such as Bugmy v The Queen, Munda v The Queen, and DPP v Miceli.

Orders