Criminal Law – Sentence – Crown appeal – Manifest inadequacy – Incest (5 counts) – Offences committed against respondent’s three year old granddaughter – Prior relevant criminal history – Respondent with paedophilic tendencies – Gross breach of trust – Whether sentencing judge failed to take into account principles of general and specific deterrence – Appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr J.D. McArdle Q.C.
K. Robertson, Solicitor for Public Prosecutions
For the Respondent
Mr P. Morrissey
Ann Valos Criminal Law
ORMISTON, J.A.:
I ask Vincent, J.A. to deliver the first judgment in this matter.
VINCENT, J.A.:
This is an appeal brought by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act. It arises for consideration against the following background.
The respondent, who, at the time of the commission of the offences concerned, was aged 42 years, pleaded guilty in the County Court at Melbourne on 6 July 2004 to five counts of incest committed against his three year old granddaughter.
He also admitted twelve prior convictions arising from four court appearances between 20 December 1993 and 4 December 2002.
As his criminal antecedents assume significance in the context of the present matter, it is, I think, desirable that they should be set out in some detail.
First, the respondent was convicted at the Magistrates' Court at Broadmeadows, on 20 December 1993, of the commission of an indecent act with a child under the age of 16 years, and on seven charges of wilful and obscene exposure in a public place. He was released on a Community Based Order for a period of twelve months on all charges.
He was next convicted at the same Magistrates' Court, on 14 November 1994. This also arose from his engagement in an indecent act with a child under 16 years. On that occasion a fine of $400 and a sentence of imprisonment for a period of three months was imposed. The Community Based Order previously mentioned, and to which he was still subject, was cancelled and he was sentenced to an effective term of one month's imprisonment for those offences.
The respondent appealed against these dispositions to the County Court and, on 23 March 1995, the sentences were varied so as to create an effective sentence of imprisonment for one month, the service of which was suspended for a period of 24 months.
On 7 September 1995, the respondent was sentenced to a fine of $250 on a charge of theft. That matter can be put to one side in the present context. More significantly, on 2 July 1996, he again appeared before the Magistrates' Court at Broadmeadows and was convicted of another offence of committing an indecent act with…
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.
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Details
AGLC
DPP v DAK [2004] VSCA 175
Case
[2004] VSCA 175
Decision Date
CaseChat Overview and Summary
The matter before the court involved the Director of Public Prosecutions appealing a sentence imposed on an individual, DAK, who had been found guilty of five counts of incest against his three-year-old granddaughter. The court was tasked with determining whether the sentence imposed was manifestly inadequate and whether the sentencing judge appropriately considered the principles of general and specific deterrence.
The legal issues before the court were whether the sentence was manifestly inadequate and whether the sentencing judge had failed to consider the principles of general and specific deterrence in imposing the sentence. The appeal hinged on the appropriate weight to be given to the offender's criminal history, his paedophilic tendencies, and the gross breach of trust involved in the offences.
The court found that the sentencing judge had not adequately considered the principles of general and specific deterrence. The offender had a history of criminal behaviour, including a previous conviction for indecent assault on a child, and demonstrated a pattern of paedophilic behaviour. The court held that the sentence imposed did not reflect the seriousness of the offences, which involved a significant breach of trust and the vulnerability of the victim. As a result, the appeal was allowed, and the case was remitted for resentencing.
The final orders of the court were to allow the appeal, set aside the original sentence, and remit the matter to the original sentencing court for resentencing.