D P C v The Queen - [2011] VSCA 395

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0196
DPC	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE JA, LASRY and ROSS AJJA
WHERE HELD	MELBOURNE
DATES OF HEARING	15 and 24 November 2011
DATE OF JUDGMENT	29 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 395
JUDGMENT APPEALED FROM	DPP v [DPC] (Unreported, County Court of Victoria, Judge Lacava, 9 June 2010)

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CRIMINAL LAW – Sentence appeal – Sexual offences against three separate children (24 charges) spanning almost a decade between January 1970 and April 1979 – Total effective sentence of 13 years and 6 months’ imprisonment with non-parole period of nine years – Fresh evidence admitted as to state of the appellant’s health in custody – Elderly offender – Guilty plea – Failure to provide an appropriate demonstrable discount for the appellant’s voluntary confession of crimes that otherwise might not have been detected – Resentenced to total effective sentence of 12 years’ imprisonment with non-parole period of seven years’ imprisonment – Sentence not manifestly excessive.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Rainer Martini & Assoc
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I have had the advantage of reading in draft the reasons for judgment of Ross AJA.

I agree with his Honour that the sentencing judge erred by failing to allow an appreciable discount on individual sentences imposed on counts of offending voluntarily disclosed by the appellant to investigating police. The Crown’s contention to the contrary, that the judge allowed a sufficient discount by ordering that those individual sentences be served concurrently, is untenable.

I am also inclined to agree with Ross AJA that evidence that the appellant recently suffered an angina attack is admissible under the principles essayed in Eliasenv R:[1] as throwing new light on a matter which was the subject of evidence and consideration below. But, like Ross AJA, I doubt it makes much difference. As the Crown submitted, the evidence is fairly thin and so, therefore, hardly compelling.
[1]Eliasen v R (1991) 53 A Crim R 391.

In the result, I would join with Ross AJA in allowing the appeal and in the orders he proposes for the re-sentencing of the appellant to a total effective sentence of 12 years’ imprisonment with a non-parole period of seven years.

LASRY AJA:

I have had the advantage of reading the draft reasons of Ross AJA and I agree with his Honour’s reasons and the orders he proposes.

ROSS AJA:

In March 2010, the appellant, now aged 76, pleaded guilty in the County Court in Melbourne to 24 charges involving sexual offending against three separate children.

The offences occurred between January 1970 and April 1979. The three victims AC, WP and ACL, were all young children. AC and ACL lived in the same street as the appellant, WP was the appellant’s daughter.

The appellant was sentenced on 9 June 2010 as follows:

Charge on Indictment Offence

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 D P C v The Queen

Details

AGLC: D P C v The Queen [2011] VSCA 395
Case: [2011] VSCA 395
Decision Date: 29 November 2011

CaseChat Overview and Summary

D P C was convicted of multiple sexual offences against three separate children, with the incidents occurring over an extended period between January 1970 and April 1979, resulting in 24 charges. The appellant was sentenced to a total effective term of 13 years and 6 months’ imprisonment, with a non-parole period of nine years. The High Court of Australia reviewed the sentence on appeal, considering fresh evidence regarding the appellant's health while in custody. The appellant, an elderly individual, had pleaded guilty to all charges. The appeal centred on the adequacy of the discount provided for the appellant’s voluntary confession and the overall fairness of the sentence.

The primary legal issues involved the appropriate weight to give the appellant’s confession and the extent of the discount required in sentencing, particularly in light of the appellant’s advanced age and health. The court examined whether the original sentence was manifestly excessive, taking into account the totality of the circumstances, including the appellant's guilty plea and the impact of the offences on the victims. The court also considered the principle of proportionality and whether the original sentence adequately balanced the need for punishment, deterrence, and rehabilitation.

The court determined that the original sentence did not appropriately account for the appellant’s voluntary confession, which likely prevented further undetected crimes. By failing to provide an adequate discount, the original sentence was considered harsher than necessary. The court found that a sentence of 12 years’ imprisonment with a non-parole period of seven years was appropriate. The High Court concluded that the new sentence was not manifestly excessive, reflecting the seriousness of the crimes while also considering the appellant’s age and health.

The court's decision resulted in a resentencing of the appellant to a total effective term of 12 years’ imprisonment, with a non-parole period of seven years. This new sentence was deemed to appropriately balance the need for punishment, deterrence, and rehabilitation, while also considering the mitigating factors presented.

Orders