DPP v Dalgliesh (a Pseudonym)

Case [2017] VSCA 360


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0190

DIRECTOR OF PUBLIC PROSECUTIONS Appellant
v
CHARLIE DALGLIESH (A PSEUDONYM) [1] Respondent

[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:

  1. 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’.

  1. 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.

  1. 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.

  1. 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.

  1. On 11 September 2015, the respondent was sentenced as follows:

Charge on Indictment Offence Maximum Sentence Cumulation
1

Incest

[Crimes Act 1958 s 44(2)]

25 years 3 years
6 months
Base

2

Incest

25 years

3 years

9 months

3

Indecent assault

[Crimes Act 1958 s 39(1)]

10 years 1 year
6…

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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.

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