DPP v Wong - [2007] VSCA 26

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 335 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)
	V
HEI YIN CHRISTOPHER GRAND WONG

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JUDGES:	VINCENT and NEAVE JJA and KELLAM AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2007
DATE OF JUDGMENT:	1 March 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 26

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Criminal law – Director’s appeal – Wilfully committing an indecent act with a child under the age of 16 years (4 counts) – Respondent was victim’s baby-sitter – Victim aged five years at the time of the offences committed against her – Breach of trust – Respondent diagnosed as suffering paraphilia with paedophilic arousal patterns – Whether sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Dr G J Lyon, SC with Mr C Mandy	Victoria Legal Aid

VINCENT JA:

The respondent pleaded guilty in the County Court at Melbourne, on 8 May 2006, having earlier indicated his intention to do so, to four counts of wilfully committing an indecent act with a child under the age of 16 years.[1] He had no prior convictions.
[1]The maximum penalty for this offence is 10 years’ imprisonment.

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 3 October 2006, imposed the following sentences:
On count 1     -          12 months' imprisonment;
  On count 2     -          12 months' imprisonment;
  On count 3     -          12 months' imprisonment; and
  On count 4     -          12 months' imprisonment.
His Honour ordered that two months of the sentence imposed on count 2, four months of the sentence imposed on count 3 and four months of that imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of one year and ten months' imprisonment, in respect of which a non-parole period of 12 months was fixed. His Honour also declared that, pursuant to s6F of the Sentencing Act 1991, the respondent was sentenced as a serious sexual offender in relation to counts 3 and 4.
The Director of Public Prosecutions has appealed against the individual sentences imposed, the total effective sentence and the non-parole period fixed by his Honour, on the basis that each was manifestly inadequate in the circumstances. Particulars advanced in support of this contention assert that the sentencing judge -

(a)     failed to adequately reflect the gravity of this offence generally        and in this case in particular;
(b)     failed to take into account or sufficiently to take into account the          aspect of general deterrence;
(c)     failed to take into account or sufficiently to take into account the          aspect of specific deterrence;
(d)     gave too much weight to factors going to mitigation;
(e)     gave insufficient weight to the maximum penalty applicable to        this offence;
(f)      gave insufficient weight to the respondent’s breach of trust;
(g)     gave insufficient weight to the fact that counts 1, 2 and 3…

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 Wong

Details

AGLC: Director of Public Prosecutions v Wong [2007] VSCA 26
Case: [2007] VSCA 26
Decision Date: 1 March 2007

CaseChat Overview and Summary

The Director of Public Prosecutions, acting on behalf of the Crown, appealed against the sentences imposed on Wong, who was convicted of four counts of wilfully committing an indecent act with a child under the age of sixteen years. Wong, who was the victim’s baby-sitter at the time of the offences, was diagnosed as suffering from paraphilia with paedophilic arousal patterns. The victim, who was aged five at the time of the offences, was subjected to serious sexual abuse by Wong. The High Court of Australia heard the appeal against Wong’s sentence. The central issue before the Court was whether the sentence imposed on Wong was manifestly inadequate in the circumstances of the case. The Crown argued that the sentence did not adequately reflect the seriousness of the crimes committed, particularly given the breach of trust and the vulnerable position of the victim. The Court had to determine if the sentence was insufficient to serve the purposes of punishment, deterrence, and rehabilitation.

The Court considered the nature and circumstances of the offences, the breach of trust, and the vulnerability of the victim. It also took into account Wong’s diagnosis of paraphilia with paedophilic arousal patterns. The Court concluded that the sentence imposed on Wong was manifestly inadequate because it did not sufficiently reflect the gravity of the crimes committed, the breach of trust, and the need for general and specific deterrence. The Court held that the sentence failed to adequately address the risk posed by Wong to children and did not provide sufficient opportunities for rehabilitation. Consequently, the appeal was allowed, and Wong was re-sentenced. The Court emphasised the importance of ensuring that sentences for such serious offences adequately serve the purposes of punishment, deterrence, and rehabilitation, particularly in cases involving the abuse of a vulnerable child.

Orders