Legal Research
Cases
DP v The Queen

DP v The Queen

Case [2011] VSCA 1 14 January 2011

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0667

DP	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG JA and KING AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 January 2011
DATE OF JUDGMENT:	14 January 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 1
JUDGMENT APPEALED FROM:	R v [DP] (Unreported, County Court Of Victoria, Judge Duckett, 5 June 2009)

---

CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to three counts of indecent act with child under 16 and seven counts of incest – All counts said to be ‘representative counts’ – Sentenced to twelve years’ imprisonment with a non-parole period of ten years – Whether sentencing judge erred in finding no evidence of remorse – Whether non-parole period excessive having regard to length of total effective sentence – Whether sentences imposed manifestly excessive – Appeal dismissed – Appeal decision no point of general principle.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S A Moglia	Victoria Legal Aid
For the Crown	Mr G Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA
KING AJA:

The appellant, DP, pleaded guilty in the County Court at Ballarat to three counts of indecent act with a child under 16 (counts 1, 2 and 3) and seven counts of incest by a parent (counts 4 to 10). All counts, other than counts 1 and 5, were said to be ‘representative’ counts. He was sentenced on 5 June 2009 to a total effective term of imprisonment of 12 years with a non-parole period of ten years, the appellant being sentenced as a serious sexual offender on counts 3 to 10 inclusive. The sentencing judge declared that, but for the plea of guilty, the appellant would have been sentenced to a total effective term of 16 years with a non-parole period of 13 years.

By notice dated 15 June 2009, the appellant sought leave to appeal against sentence. On 9 July 2010, leave to appeal was granted.

The background facts need not be set out in any great detail. The appellant is the natural father of the victim in this matter whom we shall designate ‘L’. She was born in March 1989. The appellant began sexually abusing her when she was aged only eight. The abuse started with him touching her vagina.

Subsequently, the appellant instructed L as to how she should masturbate him. The Crown alleged that this happened frequently. Within 12 months or so, this abuse had escalated to the point that the appellant was having L perform oral sex upon him.

After L had turned nine, the appellant began to have vaginal intercourse with his daughter. It was alleged that, while his wife was out, he would, on a regular basis, perform various indecent acts upon her. This abuse continued for many years. At one point, when L was aged 14, the appellant took her to Lake Wendouree near Ballarat and, at his suggestion, they exchanged ‘marriage vows’. Thereafter, and until his arrest in December…

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 DP v The Queen

Details

AGLC: DP v The Queen [2011] VSCA 1
Case: [2011] VSCA 1
Decision Date: 14 January 2011

CaseChat Overview and Summary

In the matter of DP versus The Queen, the appellant was convicted for multiple counts of indecent acts with a child under 16 and incest. The appellant entered a guilty plea to three counts of indecent acts and seven counts of incest, all of which were identified as 'representative counts'. Following the plea, the appellant was sentenced to twelve years' imprisonment, with a non-parole period of ten years. The appellant contested the sentencing, arguing that the sentencing judge was incorrect in finding no evidence of remorse, that the non-parole period was excessive in relation to the total effective sentence length, and that the sentences imposed were manifestly excessive. The court was required to determine whether these arguments had merit and whether the appeal raised any points of general principle.

The court examined the evidence presented during sentencing to determine whether there was any indication of remorse on the part of the appellant. The court also reviewed the length of the non-parole period and the overall sentence in light of the nature and circumstances of the offences, as well as the appellant's criminal history. The court concluded that the sentencing judge's findings regarding the absence of remorse were supported by the evidence and that the non-parole period was not excessive. The court further found that the sentences imposed were appropriate, taking into account the seriousness of the offences and the need for deterrence and rehabilitation.

Having reviewed the evidence and arguments presented, the court dismissed the appeal. The court found that the appeal did not raise any points of general principle or legal error that warranted further consideration. The court affirmed the sentence imposed by the sentencing judge, and the appeal was thus unsuccessful. The final orders of the court were that the appeal be dismissed and that the original sentence stand as imposed by the sentencing judge.

Orders