DPP v Stewart - [2003] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 194 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DARYL LESLIE STEWART

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JUDGES:	WINNEKE, A.C.J., CHARLES and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 November 2003
DATE OF JUDGMENT:	21 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 197

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Criminal law - Sentence - Rape and nine counts of indecent assault - Crown appeal - Sentence of two years' imprisonment wholly suspended - Whether suspension of whole term led to manifest inadequacy - Exceptional circumstances - Appellate court's discretion on Crown appeal - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms K. E. Judd	Solicitor for Public Prosecutions
For the Respondent	Mr J.P. Dickinson	Slades & Parsons

WINNEKE, A.C.J.:

I will invite Charles, J.A. to give the first judgment in this appeal.

CHARLES, J.A.:

The respondent, Daryl Leslie Stewart, was born on 31 January 1969 and is now aged 34. On 31 March 2003 He pleaded guilty to 7 counts of indecent assault contrary to ss.44(1), 42 and 39 of the Crimes Act 1958, two counts of committing an indecent act with a child under the age of 16 years and one count of rape. The maximum penalty for indecent assault pursuant to s.44(1) (count 1) and s.42 (count 2) was five years' imprisonment. The maximum penalty for indecent assault in relation to counts 3 to 7 was 10 years' imprisonment. The maximum penalty for committing an indecent act with a child under the age of 16 was 10 years' and for rape was 25 years' imprisonment.

After a lengthy plea, to the circumstances of which I shall turn later, the sentencing judge on 16 June 2003 convicted and sentenced the respondent on various counts to terms of imprisonment as follows.

1.Indecent assault - 3 months
2.Indecent assault - 3 months

3. Indecent assault - community-based order, 2 years operational
period with 350 hours unpaid work

4.    Indecent assault     -     6 months
5.    Indecent assault     -     6 months
6.    Indecent assault     -     9 months
7.    Indecent assault     -     9 months
8.    Indecent act with     -   9 months
a child under 16

9. Indecent act with 9 months
a child under 16

10. Rape 2 years

The judge made no order as to cumulation. The sentences of imprisonment were wholly suspended for a period of 3 years. The judge did not make a declaration that the respondent was a serious sexual offender.

The circumstances giving rise to these offences were as follows. There were five complainants, three brothers, RS, PS and BS, and two other boys, DM and JA. The offending involved incidents over a period of 11 years, that is, from 1991 to 2002. The respondent had met the complainants through their mutual association with a sporting club. He formed friendships with them and often provided them with cigarettes and alcohol. The offending occurred when the respondent went on holidays with the complainants and their families or slept over at their houses or they went in his car.…

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 Stewart

Details

AGLC: Director of Public Prosecutions v Stewart [2003] VSCA 197
Case: [2003] VSCA 197
Decision Date: 21 November 2003

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Stewart came before the court on appeal by the Crown. The defendant, Stewart, was convicted of rape and nine counts of indecent assault. The trial court sentenced Stewart to two years' imprisonment, which it wholly suspended. The Crown appealed the sentence, arguing that the suspension of the entire term was excessive and rendered the sentence manifestly inadequate.

The legal issues before the court included whether the suspension of the entire sentence constituted a manifest inadequacy and whether there were exceptional circumstances that warranted the appellate court exercising its discretion to vary the sentence. The court considered the principles governing the appeal process and the factors relevant to determining the adequacy of a sentence. The Crown argued that the sentence failed to adequately reflect the seriousness of the offences, while Stewart's legal representatives contended that the original sentence was appropriate given the circumstances.

The court found that while the offences were serious, the trial judge had considered the relevant factors and exercised sound judicial discretion in imposing the sentence. The court held that the suspension of the sentence did not render it manifestly inadequate and that there were no exceptional circumstances warranting an appeal court intervention. The appellate court was cautious about interfering with the trial judge's discretion, especially given the holistic approach taken in sentencing. The appeal was dismissed, affirming the original sentence.

The court did not make any orders altering the original sentence. The defendant Stewart remains subject to the sentence imposed by the trial court, which was a wholly suspended term of two years' imprisonment.

Orders