Legal Research
Cases
DPP v BDJ

DPP v BDJ

Case [2009] VSCA 298 1 December 2009

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 738 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
BDJ

---

JUDGES:	NEAVE and BONGIORNO JJA and BYRNE AJA
WHERE HELD:	WARRNAMBOOL
DATE OF HEARING:	1 December 2009
DATE OF JUDGMENT:	1 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 298
JUDGMENT APPEALED FROM:	(Unreported, County Court of Victoria, Judge Millane, 16 June 2008)

---

CRIMINAL LAW – Director’s appeal against sentence – Incest – Indecent act with a child under 16 – Respondent sentenced to 6 years and 6 months’ imprisonment with non-parole period of 4 years and 4 months – Whether sentence manifestly inadequate – Whether insufficient weight given to representative nature of incest counts, aggravating features of the offending, general and specific deterrence and denunciation and the need to establish and maintain adequate standards of punishment – Aggravating features including long period of repeated offending – Mitigating factors including guilty plea, absence of prior convictions, family circumstances and willingness to undergo treatment – Director of Public Prosecutions v OJA (2007) 172 A Crim R 181 applied – R v R H McL (2000) 203 CLR 452 applied – Appeal allowed – Respondent re-sentenced.

---

APPEARANCES:	Counsel	Solicitors
For the Director	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr R Richter QC with Mr C B Boyce	Paul Vale Criminal Law

NEAVE JA
BONGIORNO JA
BYRNE AJA:

The respondent pleaded guilty to one count of indecent act with a child under 16 and five counts of incest, four of which were representative counts. After hearing a plea in mitigation of sentence, the learned trial judge sentenced him as follows:

Count

Offence

Maximum

Term

Cumulation

1

Indecent act with a child under 16

10 years’ imprisonment

15 months’ imprisonment

6 months

2

Incest
(representative)

25 years’ imprisonment

4 years’ imprisonment

Base sentence

3

Incest
(representative)

25 years’ imprisonment

4 years’ imprisonment

6 months

4

Incest
(representative)

25 years’ imprisonment

4 years’ imprisonment

6 months

5

Incest

25 years’ imprisonment

3 years’ imprisonment

6 months

6

Incest
(representative)

25 years’ imprisonment

4 years’ imprisonment

6 months

This amounted to a total effective sentence of 6 years and 6 months’ imprisonment. Her Honour ordered that the respondent serve a non-parole period of 4 years and 4 months and that he be sentenced as a serious sexual offender in relation to counts 3 to 6, pursuant to Part 2A of the Sentencing Act1991.

The Director now appeals, arguing that the individual sentences, the total effective sentence and the non-parole period are all manifestly inadequate.

Background to the offending

The respondent is now 44. He was between 34 and 37 at the time of offending and 43 at the time of sentence. He had no prior convictions.

All the offences were committed between 1 January 2000 and 12 August 2002, against his daughter, who was between 15 and 17 years old.

The respondent grew up in a large extended Maori family…

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 DPP v BDJ

Details

AGLC: DPP v BDJ [2009] VSCA 298
Case: [2009] VSCA 298
Decision Date: 1 December 2009

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence imposed on the respondent, BDJ, who was convicted of multiple counts of indecent acts with a child under the age of 16. The sentencing was conducted in the Supreme Court of South Australia. The respondent was sentenced to six years and six months' imprisonment, with a non-parole period of four years and four months. The DPP contended that the sentence was manifestly inadequate, particularly due to the nature of the offences, which involved long-term and repeated acts of incest. The appeal raised questions about whether the trial judge had sufficiently considered the need for general and specific deterrence, denunciation, and the maintenance of adequate standards of punishment.

The legal issues before the court centred on the appropriateness of the sentence in light of the serious nature of the offences, including the length of time over which the offences were committed. The court had to determine whether the trial judge had appropriately balanced the aggravating and mitigating factors. The aggravating factors included the prolonged period over which the offences were committed, the representative nature of the counts, and the need to protect the community. Mitigating factors included the defendant's guilty plea, absence of prior convictions, family circumstances, and willingness to undergo treatment. The court referenced Director of Public Prosecutions v OJA and R v R H McL to guide its assessment of the sentence's adequacy.

The court found that the trial judge had not sufficiently considered the need for general and specific deterrence, denunciation, and the maintenance of adequate standards of punishment. The trial judge had placed undue emphasis on the mitigating factors while failing to appropriately weigh the gravity of the offences. The court allowed the appeal and re-sentenced the respondent to a term of eight years and six months' imprisonment, with a non-parole period of six years. The new sentence was intended to reflect the seriousness of the offences and to serve the purposes of punishment as outlined in the relevant legal principles.

The court's final orders included the re-sentencing of the respondent to eight years and six months' imprisonment, with a non-parole period of six years. This decision emphasised the need for sentences in cases of serious sexual offending to appropriately reflect the gravity of the crimes and to achieve the objectives of general deterrence, denunciation, and the maintenance of adequate standards of punishment.

Orders