[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGES:
REDLICH, BEACH and McLEISH JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
13 February 2017
DATE OF JUDGMENT:
21 February 2017
MEDIUM NEUTRAL CITATION:
[2017] VSCA 20
JUDGMENT APPEALED FROM:
DPP v West (a pseudonym) (Unreported, County Court of Victoria, Judge Allen, 6 May 2016)
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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under age of 16 (8 counts), sexual penetration of child under 16 (3 counts) – Conviction following trial – Total effective sentence of 5 years and 6 months’ imprisonment, 3 years non-parole – Whether sentence manifestly inadequate – Sentence wholly failed to reflect need for denunciation, punishment, general and specific deterrence and protection of community – Offending warranted substantially higher individual sentences and orders for cumulation – Appeal allowed – Resentenced to total effective sentence of 7 years and 6 months’ imprisonment, 5 years non-parole.
CRIMINAL LAW – Appeal – Sentence – Proportionality and totality – Whether principles of proportionality and totality permit reduction of individual sentences – Director of Public Prosecutions v Grabovac [1998] 1 VR 664, applied.
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APPEARANCES:
Counsel
Solicitors
For the Appellants
Mr B L Sonnet
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr D A Dann QC with Mr J D Kantor
Mike Wardell
REDLICH JA BEACH JA McLEISH JA:
Following a trial in the County Court, the respondent was convicted on eight counts of indecent acts with a child under the age of 16 and three counts of sexual penetration of a child under the age of 16. He was acquitted by the jury on two further charges.
The judge sentenced the respondent as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Indecent act with a child under the age of 16
10 years
6 months’ imprisonment
1 month
2
Indecent act with a child under the age of 16
10 years
9 months’ imprisonment
2 months
3
Indecent act with a child under the age of 16
10 years
9 months’ imprisonment
1 month
4
Indecent act with a child under the age of 16
10 years
8 months’ imprisonment
2 month
5
Indecent act with a child under the age of 16
10 years
Not guilty
N/A
6
Indecent act with a child under the age of 16
10 years
8 months’ imprisonment
1 month
7
Indecent act with a child under the age of 16
10 years
6 months’ imprisonment
1 month
8
Indecent act with a child under the age of 16
10 years
6 months’ imprisonment
1 month
9
Sexual penetration of a child under the age of 16
25 years
39 months’ imprisonment
Base
10
Sexual penetration of a child under the age of 16
25 years
30…
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.
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Details
AGLC
DPP v West [2017] VSCA 20
Case
[2017] VSCA 20
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions (Vic) v West was heard in the Court of Appeal. The appellant, West, was convicted of multiple counts of indecent acts and sexual penetration involving a child under the age of 16. The appeal centred on the adequacy of the sentence imposed on West by the trial court, which was a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years. The Director of Public Prosecutions argued that the sentence was manifestly inadequate and failed to reflect the principles of denunciation, punishment, general and specific deterrence, and the protection of the community.
The legal issues before the court were whether the sentence was manifestly inadequate and whether the principles of proportionality and totality permitted a reduction of the individual sentences. The court considered the gravity of the offences and the need for the sentence to reflect the community's standards and the protection of potential future victims. The court referenced the principles established in Director of Public Prosecutions v Grabovac, where it was held that the totality principle does not permit a reduction of individual sentences below what is warranted by the offending.
The Court of Appeal held that the sentence imposed by the trial court was manifestly inadequate and wholly failed to reflect the need for denunciation, punishment, general and specific deterrence, and the protection of the community. The court found that West's offending warranted substantially higher individual sentences and orders for cumulation. Applying the principles of proportionality and totality, the Court of Appeal allowed the appeal and resentenced West to a total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years.