[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGES:
FERGUSON CJ, WEINBERG and WHELAN JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
16 November 2017
DATE OF JUDGMENT:
7 December 2017
MEDIUM NEUTRAL CITATION:
[2017] VSCA 360
JUDGMENT APPEALED FROM:
DPP v Dalgliesh (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 11 September 2015)
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CRIMINAL LAW – Director’s appeal against sentence – Incest and related offences – Sentenced on charge 1 (incest) to 3 years and 6 months’ imprisonment – Act of sexual intercourse with 13 year old stepdaughter resulting in pregnancy – Total effective sentence 5 years and 6 months’ imprisonment with non-parole period of 3 years – Appeal originally dismissed – High Court reversed decision of Court of Appeal – Remittal of appeal – Issue whether sentence on charge 1 manifestly inadequate – Appeal allowed – Respondent resentenced on charge 1 to 7 years and 6 months’ imprisonment – New total effective sentence 9 years and 6 months’ imprisonment with non-parole period of 6 years – Director of Public Prosecutions v Dalgliesh (2017) 91 ALJR 1063 considered.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr G Silbert QC with Mr B Sonnet
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr O P Holdenson QC with Mr P Tiwana
Joseph Burke Law
FERGUSON CJ WEINBERG JA WHELAN JA:
The respondent, now aged 45, pleaded guilty, in September 2015, in the County Court at Warrnambool, to a total of four charges involving the sexual abuse of two young girls, ‘A’ and ‘B’.
As regards A, he pleaded guilty to one charge of incest (charge 1) and one charge of sexual penetration of a child under 16 (charge 4). At the time of the offence giving rise to charge 1, A was the respondent’s stepdaughter. As a result of the respondent having had sexual intercourse with her, she fell pregnant. The pregnancy was subsequently terminated.
It was unclear whether the respondent had yet entered into a de facto relationship with A’s mother, ‘JS’, when the offence giving rise to charge 4 was committed. Accordingly, that offence was charged as sexual penetration of a child under 16, rather than incest.
The respondent also pleaded guilty to one act of incest (charge 2) and one act of indecent assault (charge 3) upon A’s sister, B. She was aged between 15 and 16 at the time of the commission of these offences.
On 11 September 2015, the respondent was sentenced as follows:
[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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AGLC
DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360
Case
[2017] VSCA 360
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against the sentence imposed on Dalgliesh who was convicted of incest and related offences. Dalgliesh had engaged in an act of sexual intercourse with his 13-year-old stepdaughter which resulted in pregnancy. The trial judge sentenced Dalgliesh to 3 years and 6 months’ imprisonment on the incest charge, and a total effective sentence of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years. The appeal was dismissed by the Court of Appeal, but the High Court reversed this decision and remitted the appeal. The issue before the court was whether the sentence imposed on the incest charge was manifestly inadequate.
The court considered the seriousness of the crime, the vulnerability of the victim, and the need to deter similar offences. The court held that the sentence on charge 1 was manifestly inadequate, as it did not reflect the gravity of the crime and the need to protect the community. The court also considered the totality principle, which requires that the overall sentence should reflect the totality of the offending behaviour. The court concluded that the sentence on charge 1 should be increased to 7 years and 6 months’ imprisonment, resulting in a new total effective sentence of 9 years and 6 months’ imprisonment, with a non-parole period of 6 years.
The appeal was allowed, and Dalgliesh was resentenced on charge 1 to 7 years and 6 months’ imprisonment. The court's decision was based on the need to ensure that the sentence reflected the seriousness of the crime and the need to protect the community. The court also considered the need to deter similar offences and the vulnerability of the victim. The new sentence imposed was commensurate with the gravity of the crime and the need to protect the community.
The final orders of the court were that Dalgliesh be resentenced on charge 1 to 7 years and 6 months’ imprisonment, resulting in a new total effective sentence of 9 years and 6 months’ imprisonment, with a non-parole period of 6 years. The appeal was allowed, and the sentence was increased to reflect the seriousness of the crime and the need to protect the community. The decision of the High Court in DPP v Dalgliesh (2017) 91 ALJR 1063 was considered in reaching this decision.