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Judgment handed down in DPP v Abad

22 November 2016

The Court of Appeal today dismissed an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent for one count of sexual penetration of a child under the age of 16.

At the time of the offence the respondent was aged 31 and the victim was aged 14. They met at the Melbourne Children’s Court, where the respondent worked as a security guard.  They commenced a sexual relationship for a period of approximately six weeks. During that time the victim maintained she was 17 years of age. As the respondent believed her, on reasonable grounds, there was no offence committed at that stage. 

The relationship came to the attention of the police, who informed the respondent that the victim was 14 years old and that to engage in sexual activity with her would be an offence. The respondent and his sister confronted the victim who insisted she was 17 years old. A short while later the respondent and the victim had sexual intercourse. That was the conduct that was the subject of the charge on the indictment.

After he was found guilty at trial, the respondent was sentenced to an adjourned undertaking for two years with conviction and was placed on the sex offenders’ register for 15 years. 

At the plea hearing the prosecutor submitted that the offending was at the ‘very low, if not the lowest end of the scale’.

The Director appealed on the basis that the sentence imposed was manifestly inadequate and that a community correction order should be substituted for that sentence. The Director did not seek any more severe sanction and specifically disavowed reliance upon the circumstances in which the respondent and the victim met.

The Court of Appeal held that the sentence was manifestly inadequate. The sentencing judge misconstrued the approach to moral culpability and the sentence imposed did not properly reflect the gravity of the offending or the need for denunciation and for general deterrence. Given the substantial age difference and the direct police warning, the minimum sentence that ought have been imposed was a community correction order. 

Although the sentence was manifestly inadequate, the Court of Appeal exercised its residual discretion to dismiss the Director’s appeal. The Court considered that the Director was bound by the submissions on the plea.

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NOTE:  This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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