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DPP v Wightley

DPP v Wightley

Case [2011] VSCA 74 22 March 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0725

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	v
BRUCE ALBERT WIGHTLEY	Respondent

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JUDGES	NEAVE, MANDIE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 March 2011
DATE OF JUDGMENT	22 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 74
JUDGMENT APPEALED FROM	R v Wightley (Unreported, County Court of Victoria, Judge Gucciardo, 11 June 2009)

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CRIMINAL LAW – Crown appeal – Sentence – Respondent pleaded guilty to four representative counts of indecent act with a child under 16, two counts of indecent assault, and one representative count of sexual penetration of a child under 16 – Respondent sentenced as serious sexual offender on all but two counts – Individual sentences manifestly inadequate – Sentences did not adequately recognise effects of offending on the two young victims, or give sufficient weight to denunciation and specific and general deterrence – Orders for cumulation gave insufficient weight to presumption of cumulation under Sentencing Act 1991, s 6E – Weight to be given to compromise of victim’s application for compensation under Sentencing Act 1991, s 85B – Appeal allowed, respondent re‑sentenced.

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Appearances:	Counsel	Solicitors
For the Director	Mr J W Rapke QC with Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr P G Priest QC with Mr S M Petrovich	Michael Kelly & Associates

NEAVE JA:

The respondent, Bruce Albert Wightley, pleaded guilty to two counts each of indecent act with a child under 16 (counts 1 and 2) and indecent assault (counts 4 and 5), and one count of sexual penetration of a child under 16 (count 3). Those counts were contained in Presentment X02692858.1 and related to offences committed against RS.

He also pleaded guilty to two counts of indecent act with a child under 16 (counts 1 and 2). Those counts were contained in Presentment X02692858P and related to offences committed against RL. All counts, apart from counts 4 and 5, were representative counts. After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced the respondent as follows:

Count

Offence

Maximum

Sentence

Cumulation

Presentment X02692858.1

1

Indecent act with a child under 16[1]

10 years’ imprisonment

6 months’ imprisonment

3 months

2

Indecent act with a child under 16

10 years’ imprisonment

12 months’ imprisonment

3

Sexual penetration of a child under 16[2]

10 years’ imprisonment

24 months’ imprisonment

Base sentence

4

Indecent assault[3]

10 years’ imprisonment

12 months’ imprisonment

3 months

5

Indecent assault

10 years’ imprisonment

12 months’ imprisonment

6 months

Presentment X02692858P

1

Indecent act with a child under 16[4]

10 years’ imprisonment

9 months’ imprisonment

3 months

2

Indecent act with a child under 16

10 years’ imprisonment

12 months’ imprisonment

Base sentence

[1]Contrary to Crimes Act 1958, s 47(1).
[2]Contrary to Crimes Act 1958, s 45(1).
[3]Contrary to Crimes Act 1958, s 39(1).
[4]Contrary to Crimes Act 1958, s 47(1).

Pursuant to Part 2A of the Sentencing Act 1991

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 Wightley

Details

AGLC: DPP v Wightley [2011] VSCA 74
Case: [2011] VSCA 74
Decision Date: 22 March 2011

CaseChat Overview and Summary

The respondent in this case was convicted of various sexual offences against two young victims and appealed against his sentence. The Director of Public Prosecutions sought leave to appeal the sentence, which was granted by the Court of Appeal. The appeal raised questions about the adequacy of the sentences imposed on the respondent and whether the court had appropriately considered the principles of sentencing under the Sentencing Act 1991.

The court was required to determine whether the sentences imposed were manifestly inadequate, whether they adequately recognised the effects of the offending on the victims, and whether they appropriately balanced the principles of denunciation, specific deterrence, and general deterrence. The court also needed to consider whether the sentences given reflected the presumption of cumulation as outlined in section 6E of the Sentencing Act 1991 and whether the court had appropriately weighed the impact of the victim’s application for compensation under section 85B.

The Court of Appeal found that the sentences imposed on the respondent were indeed manifestly inadequate. They did not sufficiently recognise the effects of the offending on the victims, nor did they give appropriate weight to the principles of denunciation, specific and general deterrence. The court noted that the presumption of cumulation under section 6E of the Sentencing Act 1991 had not been adequately considered, and that insufficient weight had been given to the compromise of the victim’s application for compensation under section 85B. Consequently, the appeal was allowed, and the respondent was re-sentenced.

The final orders of the court included the re-sentencing of the respondent, with appropriate consideration given to the principles of sentencing and the impact on the victims. The court emphasised the importance of adequately recognising the effects of sexual offences on victims and ensuring that sentences reflect the principles of denunciation, specific deterrence, and general deterrence.

Orders