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CD v The Queen

CD v The Queen

Case [2013] VSCA 95 3 May 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0204

CD
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BUCHANAN and HARPER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2013
DATE OF JUDGMENT:	3 May 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 95
JUDGMENT APPEALED FROM:	DPP v [CD] (Unreported, County Court of Victoria, Judge Wilmoth, 8 March 2012).

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CRIMINAL LAW – Sentence – Four charges of incest and four charges of committing an indecent act with or in the presence of a child under 16 – Offences committed against two step daughters – Pleas of guilty – Remorse – Delay – Sentenced as a serious sexual offender – Sentenced to a total effective sentence of eight years’ imprisonment – Non-parole period of five years – Whether sentencing judge erred in her consideration of delay and remorse – Compelling evidence of genuine remorse as a sentencing factor – Phillips v The Queen [2012] VSCA 140 – Appeal allowed – Appellant re-sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney with Mr S Norton	Robert Stary Lawyers
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Harper JA.

HARPER JA:

Introduction

The courts are required to deal with much sexual misconduct involving criminality. The common, if not invariable, motive of the offenders is self-centred gratification. Their criminality is, albeit in varying degrees, ugly and abhorrent. An element in the ugliness is that the offender’s mind is closed to, or puts aside, or at least significantly discounts, the harm for which he or (unusually) she is responsible.

This case has that ugliness. And the offender’s behaviour was unquestionably abhorrent. But, on the evidence available to this Court, there is also here a highly unusual degree of honesty in the acceptance by the offender of the nature and effect of his offending. That is at the heart of this appeal.

The offending

On 5 March 2012, the appellant, who was born in 1967, entered pleas of guilty to four charges of incest and four charges of committing an indecent act with or in the presence of a child under the age of 16. The two victims were the daughters of his then wife. Their father was their mother’s former husband.

The offending occurred during a period defined only by the three years between 1 January 1999 and 31 December 2001. The complainants were then aged, respectively, between 10 and 13, and between 12 and 15. Each charge of incest involved digital, but never penile or other, penetration. In every – or almost every – case, the victim made plain her unwillingness to participate. For his part, the appellant was when offending affected by alcohol, sometimes consumed in the expectation, which was realised, that this would disinhibit him to the extent necessary to overcome his conscience.

The first occasion involving…

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 CD v The Queen

Details

AGLC: CD v The Queen [2013] VSCA 95
Case: [2013] VSCA 95
Decision Date: 3 May 2013

CaseChat Overview and Summary

The case of CD v The Queen involved the appellant who had been convicted of four charges of incest and four charges of committing an indecent act with or in the presence of a child under 16. These offences were committed against two of his step-daughters. The appellant entered pleas of guilty and was sentenced as a serious sexual offender by the Supreme Court of Victoria. The appeal was heard by the Court of Appeal in Victoria, which considered whether the sentencing judge had erred in her consideration of the delay in the matter being brought to court and the appellant’s remorse.

The central legal issues before the Court of Appeal were whether the sentencing judge had erred in her consideration of the delay and the appellant’s remorse. The appellant argued that the sentencing judge had failed to appropriately consider the evidence of his genuine remorse and the delay in the matter being brought to court. The Court of Appeal needed to determine whether these factors warranted a reduction in the sentence.

In addressing these issues, the Court of Appeal found that there was compelling evidence of the appellant’s genuine remorse, which was a significant factor in his favour. The Court referred to the case of Phillips v The Queen, where the importance of remorse as a mitigating factor in sentencing was highlighted. The Court of Appeal concluded that the sentencing judge had not adequately considered the appellant’s remorse and the delay in bringing the matter to court. Consequently, the Court found that the sentence was excessive and allowed the appeal. The appellant was re-sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and six months.

The Court of Appeal thus reduced the original sentence, reflecting a more appropriate consideration of the appellant’s remorse and the delay in the proceedings. This decision underscores the importance of properly evaluating mitigating factors such as remorse in the sentencing process.

Orders