DPP SEEKS HIGHER SENTENCE AGAINST CONVICTED PEDOPHILE UNCLE WHO IMPREGNATED NEICE
DPP v Amaral [2020] VSCA 290 (24 November 2020)
This case involves the DPP seeking for the sentence of the accused to be increased due the court’s error in indictment and due to the judge’s misinformation by the counsels about the applicability of standard sentence scheme.
Facts:
The respondent (A) pleaded guilty to three charges of sexual penetration of a child under 16. The victim of the offending was his niece (T), who was aged between 12 and 15 during the period of the offending.
(A) was sentenced to 6 years’ imprisonment on two of the charges and 6 years and 10 months’ imprisonment on the third. With orders for cumulation, the total effective sentence was 8 years and 10 months’ imprisonment. A non-parole period of 5 years and 8 months was fixed.
The Director of Public Prosecutions now appeals against the sentences imposed on the ground of manifest inadequacy. This was very serious offending, made all the more so by the fact that one of the charged acts resulted in T becoming pregnant and carrying her child to term. Significantly higher sentences were called for.
The appellant contends that the judge was led into error in two respects. First, the indictment incorrectly identified s.49B(1) of the Crimes Act 1958 as the applicable provision. In fact, because of the date of the offence, s.45(1) was the applicable provision and the offence carried a maximum penalty of 10 years, rather than the maximum of 15 years fixed by s.49B(1). Secondly, his Honour was informed by both counsel — erroneously — that the standard sentence scheme applied to charge 1. This was most unfortunate, as his Honour had specifically asked the prosecutor to explain how it was that the standard sentence scheme applied to the charges.
The final complication is that the charged act resulting in pregnancy was incorrectly identified as that on which charge 3 was based. It was common ground in this Court that the pregnancy was attributable to the conduct the subject of charge 2.
Issue: Should the appeal be granted and impose a new and higher sentence against A?
Law:
Analysis:
Because of the confusion generated by the error as to which of those charges resulted in the pregnancy, now being clear that it was charge 2, the court will fix a sentence of 8 years and 6 months on that charge. On charge 3, which was the non-pregnancy charge, the court will substitute for the term of 6 years’ imprisonment (which the judge considered appropriate for that particular offence absent the link to pregnancy) to a term of 7 years’ imprisonment.
The court will direct that one year of the sentence on charge 1 and one year of the sentence on charge 3 be cumulated on the sentence of 8 years and 6 months on charge 2. That will produce a total effective sentence of 10 years and 6 months’ imprisonment and we will fix a non-parole period of 7 years and 6 months.
Conclusion: A is hereby resentenced to 10 years and 6 months’ imprisonment, non-parole period 7 years 6 months.
