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DPP v BGJ

DPP v BGJ

Case [2007] VSCA 64 17 April 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 375 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	v
BGJ

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JUDGES:	BUCHANAN AP and VINCENT and EAMES JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 April 2007
DATE OF JUDGMENT:	17 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 64

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Criminal law – Sentence – Director’s appeal – Incest committed in 1986 – Prisoner on parole at time, for other offences of incest against complainant and her sisters – Resulting pregnancy – Indecent assault committed in 2005 – Victim the intellectually and physically disabled daughter of first complainant – Delay in complaint of incest – Prisoner aged 66 years when sentenced – Illness of prisoner rendering imprisonment more onerous – Pleas of guilty – Sentences of four years and six months’ imprisonment for incest and six months for indecent assault, total effective sentence of five years with two years and six months’ non-parole period, held manifestly inadequate – Sentencing Act 1991, s 5(2AA)(b), 5(2)(b).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr P F Tehan QC with Mr S R Johns	Galbally & O’Bryan

BUCHANAN AP:

I agree that the appeal should be allowed for the reasons stated by Eames JA. I consider that the offences displayed a complete disregard by the respondent for the emotional and physical integrity of his daughters: he treated them as if they were his chattels. The impact of the offences upon the victims was devastating. I would allow the appeal and re-sentence the respondent as Eames JA proposes.

VINCENT JA:

I agree that this appeal should be allowed for the reasons given by Eames JA in his judgment and that the respondent should be re-sentenced in the manner proposed by him.

EAMES JA:

This is an appeal by the Director of Public Prosecutions with respect to sentences imposed on 30 October 2006 in the County Court. The respondent, a man aged 66 years at the time of sentencing, pleaded guilty to one count of incest, contrary to s 52 of the Crimes Act 1958 (which was committed at a time when the maximum penalty was 20 years’ imprisonment), and one count of indecent assault (contrary to s 39 of the Act), which carried a maximum penalty of ten years’ imprisonment. The respondent was aged 45 years at the time of the first offence and 65 years at the time of the second. The circumstances of the two offences are quite remarkable, both cases, in my opinion, falling into the worst category of such offences, and thoroughly justifying intervention by this Court so as to increase the sentences that were imposed below.

A proper understanding of the seriousness of the two offences requires some recounting of the history of the relationship between the respondent and the two victims.

In June 1982 the respondent was convicted on 27 counts of incest, involving all three of his daughters. Eight of those offences, which occurred between…

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 BGJ

Details

AGLC: DPP v BGJ [2007] VSCA 64
Case: [2007] VSCA 64
Decision Date: 17 April 2007

CaseChat Overview and Summary

The case of DPP v BGJ involves the Director of Public Prosecutions appealing a sentence imposed on an individual convicted of incest and indecent assault. The respondent, BGJ, was sentenced to a total effective term of five years’ imprisonment, with a non-parole period of two years and six months, following his guilty pleas to charges of incest and indecent assault. The Court of Appeal was tasked with determining whether the sentence was manifestly inadequate under the Sentencing Act 1991.

The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the sentencing judge had appropriately considered all relevant factors, including the delay in reporting the offences, the age and health of the offender, and the cumulative impact of the crimes. The court had to assess if the sentence adequately reflected the gravity of the offences and if the non-parole period was appropriate. The appeal hinged on the interpretation of section 5(2AA)(b) and section 5(2)(b) of the Sentencing Act 1991, which pertain to manifestly inadequate sentences and the considerations in determining the appropriate punishment.

In assessing the appeal, the Court of Appeal found that the original sentence was indeed manifestly inadequate. The court emphasised the severity of the crimes, particularly the incestuous relationship that began when the victim was a child, resulting in a pregnancy, and the subsequent indecent assault on her intellectually and physically disabled daughter. The court also noted the delay in reporting these crimes and the age and health of the offender at the time of sentencing. The court determined that the original sentence did not sufficiently reflect the seriousness of the offences or provide adequate deterrence or denunciation. Consequently, the appeal was allowed, and the sentences were set aside in favour of a more appropriate punishment.

Orders