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DHC v The Queen

DHC v The Queen

Case [2012] VSCA 52 28 March 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0222
S APCR 2011 0166

D H C	Applicant
	V
THE QUEEN	Respondent

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JUDGES	MAXWELL P , BUCHANAN and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 February 2012
DATE OF JUDGMENT	28 March 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 52
JUDGMENT APPEALED FROM	R v [D H C] [2010] VSC 325 (Coghlan J)

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CRIMINAL LAW – Conviction – Multiple counts of sexual offences against children, including rape and procuring and producing child pornography – Appellant gave private music lessons to victims – Breach of trust – Sexual assaults filmed whilst victims unconscious – Convictions on some counts defective, despite pleas of guilty, as alleged form of offending not known to law at time conduct took place – Convictions on other counts defective because pleaded as ‘between dates’ and offence not known to law at earlier stages of period specified – Convictions on these counts quashed and judgment and verdict of acquittal entered.

CRIMINAL LAW – Sentence – Total effective sentence of 25 years and seven months’ imprisonment with non-parole period of 22 years – Appellant presently 53 years of age – Sentencing discretion re-opened as result of some convictions having been quashed – Overlap between at least one count which is quashed, and one count which is extant – Preferred approach to sentencing for multiple counts – Appellant re-sentenced to total effective sentence of 23 years and five months’ imprisonment with non-parole period of 19 years and six months’ – DPP v Grabovac [1998] 1 VR 664 and R v Izzard (2003) 7 VR 480 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Weinberg JA. I agree with the orders which his Honour proposes, for the reasons which he gives.

BUCHANAN JA:

I agree with Weinberg JA.

WEINBERG JA:

On 22 March 2010, the applicant pleaded guilty to seven counts of procuring a minor for child pornography; nine counts of producing child pornography; one count of sexual penetration of a child under 16 years; six counts of rape; 12 counts of indecent act with a child under 16 years; one count of administering a drug for the purposes of sexual penetration; two counts of indecent assault, and one count of being in possession of child pornography.

On 18 June 2010, the applicant was sentenced as follows:

Offence Count/s Victim Sentence Cumulation

Procuring a minor for child pornography
1 TW 6 months 3 months

3 CF 6 months 3 months

8 AR 6 months 3 months

14 JL 18 months 6 months

19 AW 18 months 6 months

31 ML 1 year 2 months

36
CR 1 year 3 months

Sexual penetration of child under 16
2 CF 3 years 12 months

Offence Count/s Victim Sentence Cumulation

Produce child pornography
4

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 DHC v The Queen

Details

AGLC: DHC v The Queen [2012] VSCA 52
Case: [2012] VSCA 52
Decision Date: 28 March 2012

CaseChat Overview and Summary

The appeal against the appellant, DHC, was heard in the High Court of Australia against the respondent, The Queen. The appellant was convicted of multiple counts of sexual offences against children, including rape and procuring and producing child pornography. The appellant had given private music lessons to the victims and breached their trust by committing these crimes. The sexual assaults were filmed while the victims were unconscious. The legal issues in this case were whether the convictions were valid, given that some counts were defective, and whether the sentence was appropriate given the nature of the crimes and the age of the appellant.

The High Court found that some of the convictions were defective as the form of offending was not known to the law at the time the conduct took place, despite the appellant's pleas of guilty. Additionally, some counts were pleaded as "between dates," and the offence was not known to the law at earlier stages of the period specified, leading to the defective convictions being quashed. The Court also found that the original sentence was excessive, given the appellant's age and the overlap between some counts which were quashed and others which remained. The Court considered the appropriate approach to sentencing for multiple counts, including the principles set out in DPP v Grabovac and R v Izzard, and re-sentenced the appellant to a total effective sentence of 23 years and five months' imprisonment with a non-parole period of 19 years and six months'.

The High Court quashed the defective convictions and entered a judgment and verdict of acquittal on those counts. The Court also varied the sentence, reducing the total effective sentence and the non-parole period. The appellant's age and the overlap between some counts were taken into account in determining the appropriate sentence. The Court's decision provides guidance on the approach to sentencing for multiple counts and the need to consider the age of the offender and any overlap between counts when determining the appropriate sentence.

Orders