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DPP v Werry

DPP v Werry

Case [2012] VSCA 208 5 September 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0869

DIRECTOR OF PUBLIC PROSECUTIONS
DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JASON WERRY	Respondent

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JUDGES:	WARREN CJ, MAXWELL P, BUCHANAN, WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 March 2011
DATE OF JUDGMENT:	5 September 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 208
JUDGMENTS APPEALED FROM:	R v Werry (Unreported, County Court of Victoria, Judge Gaynor, 16 September 2009)

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CRIMINAL LAW – Sentencing – DPP appeal against sentence – Rape – Sentence of 7 years – Whether manifestly inadequate – Sentence within range reasonably available – Ground effectively abandoned – Appeal dismissed – Crimes Act 1958 (Vic) s 567A.

CRIMINAL LAW – Sentencing – Current sentencing practices – Rape – DPP contending current sentencing practices inadequate – No live issue between parties – Consideration of circumstances in which appeal court will interfere with the exercise of a sentencing discretion – Consideration of circumstances in which appeal court may express view about adequacy of current sentencing practices – Consideration of circumstances in which an appeal against sentence can be brought by DPP – Appeal dismissed – Sentencing Act 1991 (Vic) s 5(2).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC with Mr B Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr L C Carter with Mr R Edney	Doogue & O’Brien

WARREN CJ
MAXWELL P
BUCHANAN JA
WEINBERG JA
BONGIORNO JA:

Summary

This is an appeal against sentence by the Director of Public Prosecutions. The respondent, JW,[1] was convicted by a jury of one count of rape and pleaded guilty to one count of trafficking in a drug of dependence (cannabis). He was sentenced to seven years’ imprisonment on the rape count and four months’ imprisonment on the trafficking count, with one month’s cumulation, giving a total effective sentence of seven years and one month. The learned sentencing judge fixed a non-parole period of five years’ imprisonment.
[1]The abbreviation is used for ease of reference, not for anonymity.

The former Director of Public Prosecutions filed a notice of appeal against the sentence, in exercise of his right under s 567A of the Crimes Act 1958 (Vic) (as then in force).[2] As is invariably the case in Crown appeals against sentence, the primary ground of appeal was that the sentence was manifestly inadequate.
[2]Appeals against sentence by the Director of Public Prosecutions are now governed by s 287 of the Criminal Procedure Act 2009 (Vic).

The ground of manifest inadequacy is a stringent one, difficult to make good. As this court said in Director of Public Prosecutions (Vic) v Karazisis:[3]

Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to…

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 Werry

Details

AGLC: DPP v Werry [2012] VSCA 208
Case: [2012] VSCA 208
Decision Date: 5 September 2012

CaseChat Overview and Summary

The matter before the court was an appeal by the Director of Public Prosecutions against the sentence imposed on Werry, who was convicted of rape. The appeal centred on the contention that the seven-year sentence was manifestly inadequate. The court was required to determine whether the sentence fell within the range reasonably available, and whether the ground effectively had been abandoned. The court also had to consider the broader issue of current sentencing practices for rape, as raised by the DPP.

The court examined the principles governing appeals against sentence by the DPP, as well as the criteria for determining whether a sentence is manifestly inadequate. It noted that the appeal court will generally only intervene if the sentence is outside the range reasonably available. The court considered the sentencing remarks of the trial judge and the submissions of both parties, and concluded that the sentence was not manifestly inadequate. The court also observed that the DPP had effectively abandoned the argument that the sentence was inadequate, and that the broader issue of current sentencing practices was not a live issue between the parties.

The court held that the appeal should be dismissed, as the sentence was within the range reasonably available and the ground effectively had been abandoned. The court emphasised that it would only interfere with the exercise of a sentencing discretion in exceptional circumstances, and that the DPP's appeal did not meet that threshold. The court also noted that it would not express a view about the adequacy of current sentencing practices unless there was a live issue between the parties.

The final order of the court was that the appeal be dismissed. The court did not make any orders regarding costs.

Orders