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DPP v Spottiswood

DPP v Spottiswood

Case [2021] VSCA 146 2 June 2021

Protection of the Community

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0197

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ARAN SPOTTISWOOD	Respondent

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JUDGES:	PRIEST, BEACH and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2021
DATE OF JUDGMENT:	2 June 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 146
JUDGMENT APPEALED FROM:	[2020] VCC 1328 (Judge Gaynor)

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CRIMINAL LAW – DPP Appeal – Sentence – Sexual penetration of a child under 16 –Involving a child in production of child abuse material – Possession of child abuse material – Sexual assault of a child under 16 – Manifest inadequacy – Respondent sentenced as serious sexual offender – Standard sentencing regime – Non-parole period of less than 60 per cent of head sentence imposed where standard sentences applied – High moral culpability – Risk of reoffending moderate to high – ‘Some positive prospects of rehabilitation’ despite ‘slow-moving and reluctant response to offence-specific treatment’ – Specific deterrence and protection of the community loomed large in sentencing exercise where respondent failed to demonstrate insight into offending behaviour – Stringent test of manifest inadequacy not satisfied – Lenient sentence not wholly outside range of sentencing options reasonably available – Dinsdale v The Queen (2000) 202 CLR 321, Karazisis v The Queen (2010) 31 VR 634 applied; Crimes Act 1958 ss 49B(1), 49D(1), 51B(1), 51G(1); Sentencing Act 1991 ss 5B(4), 6F, 11A(4) – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Kissane QC, with Ms J Wang	Ms A Hogan, Solicitor for Public Prosecutions
For the Respondent	Mr D A Dann QC, with Mr T Schocker	Stary Norton Halphen

PRIEST JA
BEACH JA
T FORREST JA:

On 19 November 2019 the respondent, Aran Spottiswood, pleaded guilty in the County Court to one charge of involving a child in the production of child abuse material (charge 2 — rolled-up charge), three charges of sexual penetration of a child under 16 (charges 1, 3 and 4), one charge of sexual assault of a child under the age of 16 (charge 5), and one charge of possessing child abuse material (charge 6).

On 25 August 2020 the respondent was sentenced as follows:

Charge No

Offence

Maximum Penalty

Sentence

Cumulation

1

Sexual penetration of a child under 16 years (Crimes Act 1958 s 49B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)

15 years’ imprisonment

18 months’ imprisonment

6 months

2

Involving a child in the production of child abuse material (Crimes Act 1958 s 51B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)

10 years’ imprisonment

18 months’ imprisonment

6 months

3

Sexual penetration of a child under 16 years (Crimes Act 1958 s 49B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)

15 years’ imprisonment

12 months’ imprisonment

3 months

4

Sexual penetration of a child under 16 years (Crimes Act 1958 s 49B(1), as amended by the Crimes Amendment (Sexual Offences) Act 2016)

15 years’ imprisonment

2 years’…

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 Spottiswood

Details

AGLC: Director of Public Prosecutions v Spottiswood [2021] VSCA 146
Case: [2021] VSCA 146
Decision Date: 2 June 2021

CaseChat Overview and Summary

The Director of Public Prosecutions brought an appeal against the sentence imposed on the respondent, Spottiswood, who had been found guilty of several serious sexual offences against a child. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal centred on the adequacy of the sentence imposed by the trial judge, with the Director of Public Prosecutions contending that the sentence was manifestly inadequate and not commensurate with the gravity of the respondent's crimes.

The key legal issues the court had to address were whether the sentence imposed was manifestly inadequate and whether the trial judge had failed to appropriately consider the relevant sentencing principles and statutory provisions. The court needed to determine if the sentence fell outside the range of sentencing options reasonably available to the trial judge, taking into account the nature and circumstances of the offences, the culpability of the respondent, and the need for specific and general deterrence.

The Court of Appeal held that the trial judge had not erred in sentencing the respondent. The court found that while the sentence was lenient, it did not fall outside the range of sentencing options reasonably available to the trial judge. The court emphasised that the respondent's high moral culpability, the moderate to high risk of reoffending, and the need for specific deterrence and community protection were all appropriately considered. Although the respondent had shown a slow-moving and reluctant response to offence-specific treatment, the court acknowledged there were some positive prospects of rehabilitation. The stringent test of manifest inadequacy was not satisfied, and therefore the appeal was dismissed.

No further orders were made by the Court of Appeal.

Orders