JUDGES:	MAXWELL P, WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2017
DATE OF JUDGMENT:	11 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 364
JUDGMENT APPEALED FROM:	DPP v Shrestha (Unreported, County Court of Victoria, Judge Chettle, 14 September 2016)

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CRIMINAL LAW – Appeal – Sentence – Rape – Digital penetration – Six years’ imprisonment with non-parole period of four years – Whether irrelevant consideration taken into account – Sentencing judge expressed dissatisfaction with current sentencing practice – Remarks had no bearing on sentencing task – All relevant features of offending addressed – Whether manifestly excessive – No remorse – Aggravating features – Premeditation – Violence – Vulnerability of victim – Risk of re-offending – Upper mid-level category – Not manifestly excessive – Appeal dismissed – Sentencing Act 1991 s 5(2)(b).

CRIMINAL LAW – Sentencing – Current sentencing practice – Rape – Digital penetration – Whether sentencing practice for upper mid-level category is adequate – Need for sentencing practice to be adjusted upward – DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063 considered – Crimes Act1958 s 38; Sentencing Act 1991 s 5(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis QC with Mr J Gullaci	Theo Magazis & Associates
For the Respondent	Mr G J C Silbert QC with Mr B L Sonnet	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
WHELAN JA:

Summary

Following a trial before a County Court jury, the appellant was convicted of one charge of rape (by digital penetration). He was sentenced to six years’ imprisonment, with a non-parole period of four years.

He was granted leave to appeal on two grounds, namely, that the judge took into account an irrelevant consideration and that the sentence imposed was manifestly excessive.[1] For reasons which follow, we would dismiss both grounds of appeal.
[1]Shrestha v The Queen (Unreported, Victorian Court of Appeal, Maxwell P, 3 March 2017).

The Director submitted that this appeal provided ‘a proper occasion’ for the Court to state that current sentencing for digital rape was inadequate and that sentences should increase hereafter. For reasons which follow, we have concluded that there must be an upward adjustment in sentences for digital rape offences in this category of seriousness, that is, offences whose objective gravity is broadly comparable to that of the present case.

The circumstances of the offending

At about 2:00 am on Sunday 24 August 2014, the appellant drove his car to the carpark of a nightclub. He intended to spy on his girlfriend, who he believed may have been involved with other men.[2]
[2]DPP v Shrestha (Unreported, County Court of Victoria, Judge Chettle, 14 September 2016) [2] (‘Reasons’).

The victim, WS, and her sister, had also attended the nightclub that night. At about 2:06 am, they left the nightclub intending to walk to a friend’s house nearby. The…

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 Shrestha v The Queen

Details

AGLC: Shrestha v The Queen [2017] VSCA 364
Case: [2017] VSCA 364
Decision Date: 11 December 2017

CaseChat Overview and Summary

The case of Shrestha v The Queen involves an appeal against the sentence imposed on the appellant, Shrestha, for the offence of rape involving digital penetration. The matter was heard by the High Court of Australia. The primary issue before the court was whether the sentencing judge had taken into account an irrelevant consideration in determining the sentence, and whether the sentence was manifestly excessive.

The court examined whether the sentencing judge had considered any irrelevant factors in imposing the six-year imprisonment sentence, with a non-parole period of four years. The court found that the sentencing judge's dissatisfaction with current sentencing practices for rape did not influence the sentence. The judge had addressed all relevant features of the offending, including the absence of remorse, premeditation, violence, vulnerability of the victim, and the risk of re-offending. The court concluded that the sentence fell within the upper mid-level category and was not manifestly excessive.

The High Court further considered whether the sentencing practice for rape in the upper mid-level category was adequate. The court noted the relevance of the decision in DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063, which suggested the need for an adjustment in sentencing practice. However, the court held that the current sentencing practice was sufficient, as all relevant features of the offence had been appropriately considered. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of six years' imprisonment with a non-parole period of four years was upheld. The court's decision underscored the importance of addressing all relevant features of the offence in sentencing, while also recognising the need for ongoing evaluation of sentencing practices in light of evolving societal standards.

Orders