DPP v West

Case [2017] VSCA 20


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0104

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
ANDREW JOHN WEST[1] Respondent

[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:

  1. 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.

  1. 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…

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DPP v West [2017] VSCA 20
Case
[2017] VSCA 20
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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.

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