DPP v Swingler

[2017] VSCA 305

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0149

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Appellants

v

RYAN ALAN SWINGLER

Respondent

---

JUDGES:	FERGUSON CJ, MAXWELL P and WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2017
DATE OF JUDGMENT:	24 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 305
JUDGMENT APPEALED FROM:	DPP (Cth) and DPP v Swingler (Unreported, County Court of Victoria, Judge McInerney, 7 July 2016)

---

CRIMINAL LAW – Appeal – Sentence – Crown appeals – Joint Commonwealth–State indictment – State charges of sexual penetration of child under 16 (two charges), possession of child pornography, indecent act – Commonwealth charges of using internet to groom child victims, procure for sex and send indecent images – Sentenced on State offences to 23 months’ imprisonment followed by three year community correction order (‘CCO’) – Sentenced on Commonwealth offences to 20 months’ imprisonment – Effective global sentence 23 months’ imprisonment with three year CCO – Whether manifestly inadequate – Whether judge failed to order proper cumulation – Whether judge erred in applying ‘serious sexual offender’ provisions – Whether s 6E of Sentencing Act 1991 complied with – Appeals allowed – Respondent resentenced to total effective sentence of 6 years and 6 months’ imprisonment with non-parole period of 4 years and 6 months. 

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Champion SC, DPP (Vic) with Ms S Coombes	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr P Tiwana	Dribbin & Brown

FERGUSON CJ
MAXWELL P
WEINBERG JA:

1. Both the Commonwealth and Victorian Directors of Public Prosecutions have appealed against sentences imposed upon the respondent for a mixture of Commonwealth and State offences.  These appeals were heard together.  They were argued by the Victorian Director on his own behalf and, so far as the Commonwealth offences are concerned, on behalf of his Commonwealth counterpart.

1. There are two separate notices of appeal.  The Commonwealth notice contains one ground of appeal only, and is in the following terms:

The learned sentencing judge erred in failing to order any or proper accumulation between the Commonwealth offences and any or proper accumulation between the Commonwealth and State offences such that the total effective sentence is manifestly inadequate.

1. The State notice of appeal is expressed more elaborately.  There were originally three grounds relied upon, as follows:

Ground 1 — The total effective sentence is manifestly inadequate in that in fixing sentence the learned sentencing judge -

(a)failed to make orders that would produce any cumulation between the State and federal sentences and thereby failed to reflect the gravity of the federal offences, and the gravity of the offending against 3 of the 5 victims, whose charges make no contribution to the global sentence.

(b)made a single, inadequate order for cumulation between two of the four serious State charges, and thereby failed to reflect the fact charges 6 and 12 involved serious offences against different victims, and charge…