Dinsdale v The Queen

Link copied
Case Copied 52 min read

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, GUMMOW, KIRBY AND HAYNE JJ

CHRISTIN ROBERT DINSDALE   APPELLANT

AND

THE QUEEN  RESPONDENT

Dinsdale v The Queen [2000] HCA 54
Date of Order: 7 September 2000
Date of Publication of Reasons: 12 October 2000
P42/2000

ORDER

1.  Appeal allowed.

2.  Orders of the Court of Criminal Appeal of Western Australia made 
         on 2 February 1999 be set aside.

3.  In place of those orders, order that the appeal to that Court is
        dismissed.

On appeal from the Supreme Court of Western Australia

Representation:

A G Braddock for the appellant (instructed by Young & Young)

R E Cock QC with J A Girdham for the respondent (instructed by Director of Public Prosecutions (Western Australia))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Dinsdale v The Queen

Criminal law – Sentencing – Crown appeals against sentence – Circumstances in which Court of Criminal Appeal should allow appeal against sentence and substitute its own sentence – Necessity to find and identify error before allowing appeal – Whether failure to do so in reasons of Court of Criminal Appeal.

Criminal law – Sentencing – Crown appeals against sentence – Circumstances in which judicial discretion to suspend sentence should be exercised – Whether power to suspend sentence is confined by reference wholly, mainly or specially to the effect on rehabilitation of the offender.

Criminal Code (WA), s 688.
Sentencing Act 1995 (WA), ss 39(2), 76.

  1. GLEESON CJ AND HAYNE J.   The appellant appeals from orders of the Court of Criminal Appeal of Western Australia (Kennedy, Pidgeon and Murray JJ) allowing a prosecution appeal against the sentence imposed on him in the District Court of Western Australia.  The appellant had been indicted in the District Court on one count of sexual penetration of a child under the age of 13 years and one count of indecently dealing with that child.  Both offences were alleged to have occurred on the same date and at the same place.  The appellant pleaded not guilty but was convicted on both counts.  The trial judge (Judge Viol) sentenced him to concurrent terms of suspended imprisonment (each term being of 18 months, suspended for 18 months).

  2. The Court of Criminal Appeal allowed the prosecution appeal, set aside the sentence imposed by the trial judge on the offence of sexual penetration and in lieu, ordered that the appellant be sentenced to 30 months' imprisonment.  The order for suspension of the term of imprisonment was set aside.

  3. It is desirable to restate some propositions which are fundamental to criminal appeals but which may sometimes be obscured by the development of shorthand descriptions of what is done in particular cases. It is of the first importance to identify the jurisdiction which the Court of Criminal Appeal exercises, the power the Court is given, and the circumstances in which those powers may be exercised. In this particular case, the Court of Criminal Appeal of…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Dinsdale v The Queen and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2000] HCA 54
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Christin Dinsdale against a decision of the Court of Criminal Appeal of Western Australia. The dispute concerned the sentence imposed on Mr Dinsdale following his conviction for sexual penetration and indecent dealing with a child under the age of 13. The Crown had appealed the sentence imposed by the District Court, arguing it was unduly lenient.

The legal issues before the High Court were whether the Court of Criminal Appeal had erred in allowing the Crown's appeal against sentence and substituting its own sentence, and whether the power to suspend a sentence of imprisonment is confined by reference to the offender's rehabilitation. Specifically, the High Court examined whether the Court of Criminal Appeal had identified and articulated an error in the sentencing judge's discretion before intervening.

The High Court reasoned that a Court of Criminal Appeal should only interfere with a sentencing judge's discretion in a Crown appeal where there is a demonstrable error of principle. The Court found that the Court of Criminal Appeal had not clearly identified or articulated such an error in the primary judge's reasons, despite acknowledging the seriousness of the offences. The High Court concluded that the Court of Criminal Appeal had erred in substituting its own sentence without first establishing a clear basis for doing so, and that the principles governing Crown appeals required greater circumspection.

The High Court allowed the appeal, set aside the orders of the Court of Criminal Appeal of Western Australia, and reinstated the original sentence imposed by the District Court, thereby dismissing the Crown's appeal to that court.

Orders

Orders of the court

1. Appeal allowed.

2. Orders of the Court of Criminal Appeal of Western Australia made

on 2 February 1999 be set aside.

3. In place of those orders, order that the appeal to that Court is

dismissed.

Background

Background to the litigation

On 7 September 2000, this Court announced its orders allowing the appeal, setting aside the orders of the Court of Criminal Appeal and in place of those orders, ordering that the appeal from the sentence imposed on the appellant be dismissed. What follows are my reasons for joining in those orders.The facts Mr Christin Dinsdale (the appellant) was a friend of the family of the complainant who, at the relevant time, was a girl of nine years. On an unknown date between December 1995 and January 1996, the complainant had stayed overnight in the appellant's home with the appellant's daughter, a girl of about the same age. The complainant stated that at some stage during the evening, whilst she and the appellant's daughter were watching television, the appellant pulled up her skirt, moved her underpants and inserted his thumb into her vagina. When the appellant asked her if she liked it, she said that she did not and the appellant stopped and walked away. On the following afternoon, before the complainant returned to her home, she said that she and the appellant's daughter went into the appellant's bedroom. He offered to massage the girls who lay on the bed on their stomachs for this purpose. When he suggested that he should "look for blackheads", the appellant's daughter got off the bed and moved to another part of the room. According to the complainant, the appellant moved her underpants to one side and looked closely at her vagina. The complainant first told her mother about the incidents in about March 1998. Soon after, the police were informed and the appellant was charged. He was tried before Viol DCJ and a jury in the District Court of Western Australia. The charges brought against the appellant comprised one count of sexual penetration of a child under the age of 13 years[19] and a second count of indecent dealing with a child under the age of 13 years[20]. The maximum sentence provided by law in respect of the first count was 20 years imprisonment[21] and in respect of the second count, 10 years imprisonment[22]. The appellant, when charged with the offences, denied his guilt. Both the complainant and the appellant gave evidence at the trial, as did the appellant's wife and a neighbour. On 24 September 1998, the jury found the appellant guilty on both counts. He was convicted. It thus fell to Viol DCJ to sentence him.[19]Criminal Code (WA), s 320(2).[20]Criminal Code, s 320(4).[21]Criminal Code, s 320(2).[22]Criminal Code, s 320(4). In the sentencing proceedings, Viol DCJ had available to him a victim impact statement made by the mother of the complainant. It described how the complainant had become withdrawn and unhappy until the disclosure was made[23]. His Honour also had before him character references from the appellant's wife and a family friend. The wife, in particular, asserted her continuing belief in her husband's innocence. She asked the judge to remember that he was not only sentencing the appellant but also his family.[23]See Sentencing Act 1995 (WA), s 24; R v Pinder (1992) 8 WAR 19 at 39-40.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HAYNE J GAUDRON AND GUMMOW JJ KIRBY J
Following the sentence imposed on the appellant, the Crown appealed to the Court of Criminal Appeal of Western Australia.The decision of the Court of Criminal Appeal The Court of Criminal Appeal upheld the Crown's appeal. It set aside the sentence of 18 months imprisonment for the offence of sexual penetration and in place of the sentence imposed by Viol DCJ, substituted, for that offence, a sentence of 30 months imprisonment. It left the sentence in respect of the second count standing and directed that it be served so that the aggregate sentence of imprisonment would be 30 months. The appellant was declared eligible for parole in respect of the term of imprisonment. The order for suspension of the service of the term of imprisonment was set aside. In the result, the appellant was returned to custody. The reasons for the orders of the Court of Criminal Appeal[25] were given by Murray J.[25]Comprising Kennedy, Pidgeon and Murray JJ. His Honour began with a reference to two considerations which controlled the Court of Criminal Appeal in what it might do[26]:"[T]his Court will be circumspect [in a Crown appeal] to ensure that the discretionary sentencing judgment of the court below is only upset in a clear case where that is required, not merely to correct a lenient sentence, but only where from the leniency or otherwise it appears that there has been an error of principle which has caused the discretion of the sentencing Judge to miscarry, and where it is seen to be necessary to intervene to aid the consistency and certainty of the sentencing process and to avoid undue disparity. Even in such a case this Court will have regard to the fact that it is dealing with a discretionary judgment and, in choosing the sentence to be substituted for that passed by the sentencing Judge, it will have regard to the principle of double jeopardy so as to substitute a sentence towards the more lenient end of the range of proportionate sentences conceived to be available[27]."[26]CCA judgment at 2 per Murray J.[27]R v Peterson [1984] WAR 329 at 330-331 per Burt CJ; Leucus (1995) 78 A Crim R 40 at 51-52 per Murray J. After describing the offences of which the appellant had been convicted and accepting that they were "of a relatively minor nature when compared to others of the same types"[28], Murray J referred to the boldness of the appellant's conduct in the presence of his own daughter, the invasion of the person of the complainant and the fact that separate incidents were involved in the offences committed on different days. He set out the reasons of the primary judge for the orders that he had made and noted that the Crown's appeal was both against the length of the aggregate term of imprisonment imposed and the decision to suspend its service. He recorded the submission that Viol DCJ had placed "undue emphasis" on matters personal to the appellant[29].[28]CCA judgment at 4.[29]CCA judgment at 8. Murray J then addressed the two issues which had been identified. As to the length of the term of imprisonment, he referred to another case of digital penetration of a young female complainant in O'C[30].That case had also been decided by the Court of Criminal Appeal but prior to the availability of the power to suspend the serving of a sentence of imprisonment. A two year probation and a requirement of 150 hours of community service imposed at trial were there set aside and a term of 12 months imprisonment substituted, with eligibility for parole[31]. His Honour accepted that there were some differences in the two cases that meant that the sentence imposed in O'C could not be regarded as a "bench mark"[32] for the present case. He declined a submission of the Crown that the two offences should have attracted a cumulative sentence. Then, without either expressly finding an appealable error in the reasons of the primary judge or identifying precisely what such error was (for example the imposition of a "manifestly inadequate" sentence), Murray J went on to dispose of the first of the arguments advanced in the appeal[33]:"Given the constraints arising out of the fact that this is a Crown appeal, I would allow the appeal thus far to the extent necessary to impose a sentence of 30 months imprisonment for the digital penetration offence ... I would not interfere with the order for the concurrent service of the two terms. I am persuaded of the need to intervene in this case, particularly having regard to the age of the child, the confidence with which the offences were committed, their impact upon the victim, the repetition of the conduct, the breach of trust involved, and the complete lack of remorse shown."[30](1989) 41 A Crim R 360.[31](1989) 41 A Crim R 360 at 367.[32]CCA judgment at 10.[33]CCA judgment at 10-11.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HAYNE J, GAUDRON AND GUMMOW JJ, KIRBY J

Full text does not contain this section.