DM v The Queen - [2012] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0234

DM	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, OSBORN JJA and KING AJA
WHERE HELD	GEELONG
DATE OF HEARING	30 May 2012
DATE OF JUDGMENT	21 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 227
JUDGMENT APPEALED FROM	R v [DM] (Unreported, County Court of Victoria, Judge Mullaly, 11 June 2010)

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CRIMINAL LAW − Appeal against sentence − Guilty plea − Three charges of indecent act and two charges of incest with 14 year old daughter − Total effective sentence of six years and nine months’ imprisonment, with non-parole period of four years and four months imposed − Appellant suffers from major depressive disorder − Whether sentence manifestly excessive − Whether judge erred in application of Verdins − Whether judge erred in finding no reduction in moral culpability − Appeal dismissed.

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Appearances	Counsel	Solicitors
For the Appellant	Mr C T Carr	Victoria Legal Aid
For the Respondent	Ms D I Piekusis	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I agree with King AJA that the appeal against sentence should be dismissed.

OSBORN JA:

I have had the advantage of reading the judgment of King AJA in draft form and I agree with it.

KING AJA:

This is an appeal by DM against a sentence of six years and nine months’ imprisonment, with a non-parole period of four years and four months, which was imposed on him in the County Court following his plea of guilty to three charges of an indecent act with or in the presence of a child under 16 (charges 1, 2, and 5) and two charges of incest (charges 3 and 4), with his 14 year old daughter.

The maximum sentences for the offences, the individual sentences imposed and the orders for cumulation made by the learned sentencing judge are set out below:

Charge	Offence	Maximum	Sentence	Cumulation
1	Indecent Act with or in the presence of a child under 16 Crimes Act 1958 s 47(1)	10 years Crimes Act 1958 s 47(1)	9 months	1 month
2	Indecent Act with or in the presence of a child under 16 Crimes Act 1958 s 47(1)	10 years Crimes Act 1958 s 47(1)	18 months	6 months
3	Incest Crimes Act 1958 s 44(1)	25 years Crimes Act 1958 s 44(1)	5 years	12 months

Incest

Crimes Act 1958 s 44(1)

25 years

Crimes Act 1958 s 44(1)

5 years

(Base)

Indecent Act with or in the presence of a child under 16

Crimes Act 1958 s 47(1)

10 years

Crimes Act 1958 s 47(1)

12 months

2 months

The judge declared pursuant to s 6AAA of the Sentencing Act 1991 that the sentence he would have imposed but for the plea of guilty would have been nine years and eight months’ imprisonment, with a non-parole period of six years and eight months.

On 3 February 2012, the appellant was granted leave to appeal against sentence on the following grounds:

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 DM v The Queen

Details

AGLC: DM v The Queen [2012] VSCA 227
Case: [2012] VSCA 227
Decision Date: 21 September 2012

CaseChat Overview and Summary

In the case of DM v The Queen, the appellant, DM, sought to appeal his conviction and sentence imposed by the Supreme Court of Victoria. DM had pleaded guilty to three counts of indecent act and two counts of incest involving his 14-year-old daughter. The court imposed a total effective sentence of six years and nine months’ imprisonment, with a non-parole period of four years and four months. The appeal centred on the severity of the sentence, DM’s mental health status, specifically his major depressive disorder, and the judge's application of the Verdins principles.

The primary legal issues addressed by the court were whether the sentence was manifestly excessive, whether the trial judge erred in the application of the Verdins principles, and if the judge correctly found no reduction in moral culpability due to DM’s mental health condition. The appellant argued that his major depressive disorder should have warranted a more lenient sentence and that the trial judge had misapplied the Verdins criteria in assessing the seriousness of the offending. DM also contended that his mental health condition should have resulted in a reduction of his moral culpability.

The Court of Appeal found that the trial judge had properly considered DM’s major depressive disorder and other mitigating factors in the sentencing process. The court held that the sentence was not manifestly excessive, as it reflected the seriousness of the offending and the need to protect the community. The appeal court further determined that the trial judge had correctly applied the Verdins principles and found no error in the assessment of moral culpability. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders