SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 748 of 2007
| THE QUEEN |
| v |
| NICHOLAS PROPSTING |
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JUDGES: | BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 March 2009 | |
DATE OF JUDGMENT: | 5 March 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 45 | |
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CRIMINAL LAW – Sentence – Possession and production of child pornography –Aggravated burglary – Intentionally causing serious injury – Breach of intervention order – Sentencing judge erred in sentencing appellant as a serious offender and finding that offences were revealed without first alerting counsel to the issue – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr C B Boyce | Victoria Legal Aid |
BUCHANAN JA:
I will ask Vincent JA to deliver the first judgment in this matter.
VINCENT JA:
The appellant pleaded guilty in the County Court at Warrnambool to two counts of possession of child pornography (counts 1 and 3), one of producing child pornography (count 2), one of aggravated burglary (count 4), and two of intentionally causing serious injury (counts 5 and 6). He also pleaded guilty to two charges which had been uplifted from the Magistrates' Court, arising from breaches of an intervention order. He had two findings of guilt and 16 previous convictions from eight court appearances between 9 November 1993 and 10 November 1996.
The sentencing judge summarised his criminal history as follows:
Your prior offending includes alcohol and drug offences, street offences, two charges of being in possession of a regulated weapon, using a firearm without a licence, wilful damage, one count of intentionally or recklessly causing injury, and one count of causing injury intentionally. Most importantly, on the last time you were before the court in November 1998, you faced charges of false imprisonment and committing an indecent act with a child under 16, as well as intentionally damaging property and the possession of cannabis. On that occasion you were sentenced to a total of nine months' imprisonment. I am told that the charges of false imprisonment and committing an indecent act with a child under 16 arose when you went to a house in Portland looking for a woman who had an eleven-year-old daughter who was alone at the time in her home. You attacked this girl by grabbing her, and then rubbed her groin and asked her to have sex with you. When she ran away you tore the phone off the wall of the house so that she could not contact anyone, then ran away yourself.
After hearing a plea in mitigation of penalty, the judge, on 23 August 2007, imposed upon the appellant the following sentences:
Count 1, possession of child pornography: 6 months' imprisonment, which was used as the base sentence.
Count 2, producing child pornography: 2 years' imprisonment.
Count 3, possession of child pornography: 18 months' imprisonment.
Count 4, aggravated burglary: 12 years' imprisonment.
Count 5, intentionally causing serious injury: 5 years' imprisonment.
Count 6,…
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- AGLC
- R v Propsting [2009] VSCA 45
- Case
- [2009] VSCA 45
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the sentencing judge erred in his characterisation of the appellant as a serious offender and whether the appellant was given adequate notice and opportunity to respond to the aggravating factors considered by the judge. The court was required to examine the evidence presented at the original trial and the reasoning behind the judge’s decision to determine if there were any procedural or substantive errors that warranted a reconsideration of the sentence.
The court found that the sentencing judge had erred in characterising the appellant as a serious offender without first alerting counsel to the issue and providing an opportunity to respond. The court also noted that the judge did not properly consider the mitigating factors and the appellant's prospects for rehabilitation. Consequently, the court re-sentenced the appellant, taking into account the totality of the circumstances and the need to ensure that the sentence was proportionate and just. The final orders reflected the court’s determination, adjusting the sentence to address the procedural shortcomings and ensuring that the re-sentencing process was fair and transparent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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