D R S v The Queen - [2012] VSCA 276

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0153

D R S	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, REDLICH and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	2 November 2012
DATE OF JUDGMENT	16 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 276
JUDGMENT APPEALED FROM	DPP v [DRS] (Unreported, County Court of Victoria, Judge Gaynor, 14 June 2012)

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CRIMINAL LAW − Application for leave to appeal against sentence − Conviction for committing an indecent act with biological daughter aged under 16 − Sentence of two years’ imprisonment, 14 months suspended for 18 months − Whether judge erred in failing to make finding as to occurrence of uncharged acts − Whether judge erred in treating uncharged acts as aggravating factor in absence of finding − Application for leave to appeal against sentence granted − Appeal allowed − Re-sentenced to 18 months’ imprisonment, 10 months suspended for two years.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J P Wheelahan	Mr M Wardell
For the Respondent	Mr T Gyorffy S.C.	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

The applicant seeks leave to appeal against a sentence of two years’ imprisonment, 14 months of which was suspended for 18 months, imposed on him following a County Court jury verdict that he was guilty of the offence of committing an indecent act against a child under 16 (charge 1). The victim was his daughter, who was aged between 14 and 15 years. The jury acquitted the applicant of a second charge alleging that, on a different occasion, he had placed his daughter’s hand on his penis.

The offence occurred between 1 January 2009 and 30 April 2010 at the family home. The applicant woke his daughter up and took her into the kitchen, telling her that he wanted to sit with her while listening to music on the family computer. After the victim complied with a request that she sit on his lap, the applicant put his hand under her top and touched her breasts.

The victim’s evidence at the trial was that the applicant repeated this ‘nearly every night for, like ages’ until the behaviour eventually stopped. She said that the applicant was always drunk when he touched her in this way.

The applicant pleaded not guilty to the charges against him, although he admitted to police in a record of interview that on the occasion covered by charge 1, he had tickled his daughter ‘a bit too high’ and ‘touched something [he] shouldn’t have’.

The judge’s sentencing remarks

Her Honour noted that at the time of sentence, the applicant was aged 44,[1] had been married for 22 years[2] and had been in steady employment until he stopped working to care for his wife, who has significant health problems.[3] He and his wife had five children. The applicant turned to alcohol to relieve him from stress caused by family difficulties and he began drinking more heavily after his son committed suicide at the age of…

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 R S v The Queen

Details

AGLC: D R S v The Queen [2012] VSCA 276
Case: [2012] VSCA 276
Decision Date: 16 November 2012

CaseChat Overview and Summary

D R S appealed against his sentence, imposed following a conviction for committing an indecent act with his biological daughter, who was under the age of 16. The primary issue before the court was whether the trial judge erred in not making a finding as to the occurrence of uncharged acts, and whether the judge erred in treating these uncharged acts as an aggravating factor in the absence of such a finding. The appeal was heard in the High Court of Australia.

The court considered whether the trial judge’s failure to make a finding regarding the uncharged acts constituted a significant error that warranted an appeal against the sentence. Additionally, the court evaluated whether the judge’s decision to treat these uncharged acts as an aggravating factor was appropriate, given the lack of a definitive finding on their occurrence. The appeal hinged on the procedural fairness and correctness of the sentence imposed, focusing on the impact of uncharged acts on the sentencing process.

The High Court found that the trial judge’s failure to make a finding on the uncharged acts was a significant error, and that treating these acts as an aggravating factor without such a finding was inappropriate. The court granted the application for leave to appeal and allowed the appeal. The sentence was reconsidered, and D R S was re-sentenced to 18 months’ imprisonment, with 10 months suspended for two years.

The final orders of the court mandated that the sentence be altered to reflect the court’s re-evaluation of the circumstances and the appropriate legal considerations. The new sentence was to be implemented accordingly, taking into account the court’s findings on the procedural errors identified during the appeal process.

Orders