[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGES:
MAXWELL ACJ, REDLICH and BEACH JJA
WHERE HELD:
MELBOURNE
DATE OF HEARING:
15 March 2016
DATE OF ORDERS:
18 March 2016
DATE OF JUDGMENT:
29 June 2016
MEDIUM NEUTRAL CITATION:
[2016] VSCA 148
JUDGMENT APPEALED FROM:
DPP v Charlie Dalgliesh (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 11 September 2015)
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest, sexual penetration of child under 16 – Offending against daughters of de facto partner – Resultant pregnancy of 13-year-old victim – Subsequent termination of pregnancy – Total effective sentence 5y 6m, sentence 3y 6m on charge involving pregnancy – Whether manifestly inadequate – Pregnancy as aggravating factor – Current sentencing practice for comparable offending – Need for consistency of sentencing – Sentence lenient but not outside range – Appeal dismissed – Sentencing Act 1991 s 5(2)(b) – Crimes Act 1958 s 44.
CRIMINAL LAW – Offences – Characterisation – Incest – Sexual penetration an act of violence – Not inherently less serious than rape – Presumption of harm – Clarkson v The Queen (2011) 32 VR 361, discussed – Crimes Act 1958 s 44.
SENTENCING – Principles – Current sentencing practice – Incest – Incest involving dependent child – Mid-range seriousness – Whether current sentencing practice reflects objective gravity and moral culpability – Whether current sentencing practice consistent with maximum penalty – Current sentencing inadequate – Need for higher sentences – Hogarth v The Queen (2012) 37 VR 658; Ashdown v The Queen (2011) 37 VR 341; Harrison v The Queen (2015) 74 MVR 58, discussed – Crimes Act 1958 s 44.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr C B Boyce SC with Ms M Stylianou
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr P S Tiwana with Mr J G Westmore
Joseph Burke Law
Appearing as Amicus Curiae
Mr D A Dann QC with Mr P J Smallwood
Law Institute of Victoria and Criminal Bar Association
MAXWELL ACJ
REDLICH JA BEACH JA:
Overview
This is an appeal against sentence brought by the Director of Public Prosecutions. The respondent (‘CD’) pleaded guilty in the County Court to charges of incest, indecent assault and sexual penetration of a child under 16 and was sentenced to five years and six months’ imprisonment, with a non-parole period of three years.
The charges involved offending against the two daughters of CD’s partner (P). The offending the subject of charge 1 resulted in the victim falling pregnant. She was 13 years old.
The Director appeals on two grounds: first, that the sentence of three years and six months imposed on charge 1 (incest) is…
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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AGLC
DPP v Dalgliesh (a pseudonym) [2016] VSCA 148
Case
[2016] VSCA 148
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions v Dalgliesh, the appellant was convicted on five charges of sexual offences against his two daughters, K and J, and their mother P. The appellant was sentenced to a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years and 6 months for the charge of incest that resulted in K's pregnancy. The Director of Public Prosecutions appealed the sentence on the basis that it was manifestly inadequate. The appellant cross-appealed on the basis that the trial judge had erred in characterising the sexual penetration of a child as an act of violence and in considering the pregnancy as an aggravating factor. The Court of Appeal had to decide whether the sentence was manifestly inadequate and whether the trial judge erred in characterising the sexual penetration and considering the pregnancy as aggravating factors.
The Court of Appeal held that the sentence was not manifestly inadequate, although it was on the lenient side. The Court noted that the appellant had no prior convictions, had pleaded guilty at the first available opportunity, and had spared the victims the trauma of having to give evidence. The Court also held that the trial judge did not err in characterising the sexual penetration as an act of violence or in considering the pregnancy as an aggravating factor. The Court noted that incest involving a dependent child was a mid-range serious offence and that the current sentencing practice reflected the objective gravity and moral culpability of the offence. The Court also noted that the current sentencing practice was consistent with the maximum penalty and that there was no need for higher sentences.
The Court of Appeal dismissed the appeal and the cross-appeal. The Court held that the sentence was not manifestly inadequate and that the trial judge had not erred in characterising the sexual penetration or considering the pregnancy as an aggravating factor. The Court noted that the current sentencing practice for incest involving a dependent child was appropriate and that there was no need for higher sentences. The Court also noted that the appellant had shown remorse and had good prospects of rehabilitation.
The Court of Appeal made no orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
At a time when K was between the ages of nine and 14, she entered the bedroom which P and CD shared. CD was in the bedroom, having recently had a shower. K climbed into the bed. CD approached her, took his towel off and then inserted his penis into her mouth. K was shocked and did not know what was happening. CD grabbed her head and moved it back and forth (charge 4 – Sexual penetration of a child under 16). Shortly afterwards, CD stopped this conduct and K returned to her own bedroom. The prosecution accepted that, at the time of this offending, it could not be said that CD was in a de facto relationship with P.[7] It was accepted by defence counsel on the plea that this offending had occurred first in time and prior to the offending the subject of charge 1.[7]Crimes Act 1958 ss 35(1), 44(2). But see the discussion of Sutton v The Queen [2015] VSCA 251 (‘Sutton’) – below, at [57]. On a subsequent occasion, when K was aged 13, CD was in bed whilst P was having a shower. K climbed into the bed. CD moved himself towards K and inserted his penis into her vagina (charge 1 – Incest). He ejaculated inside her vagina and as a result of this K fell pregnant. The pregnancy was terminated. Fearing repercussions due to her pregnancy, K stated falsely that she had had sex with a male school friend. As a result, P and her children moved, with CD, to a new town following the termination. Although CD did not encourage the lie, he did not correct it, and allowed the family to continue to believe that the pregnancy had resulted from a sexual encounter with a school friend. This also enabled CD to continue to live with the family. Charges 2 and 3 concern J, the older sister of K. As mentioned earlier, J suffers from a mild intellectual disability. When J was 15 or 16, CD penetrated her vagina with his penis (charge 2 – Incest). On a subsequent occasion, when J was 16, CD approached her and begged her for sex. J sat on a couch in the lounge area and lifted up her dress. CD then placed his penis in the area of her vagina (charge 3 – Indecent assault). CD’s offending in respect of charge 3 was observed by P, which resulted in the ending of her relationship with him. During the plea and sentence, the judge identified the relevant features of the case as follows. CD had no prior convictions. He had pleaded guilty at the first available opportunity, and had spared the victims the trauma of having to give evidence. The pleas facilitated the course of justice and demonstrated CD’s remorse. CD had also expressed his remorse to P and the victims after P found him engaging in the conduct the subject of charge 3. Although CD did not initially give a completely open and frank account in his record of interview, he had eventually cooperated with the authorities. Charge 2 was based solely on CD’s confession to police in his record of interview. A substantial discount was required on that account. His prospects of rehabilitation were assessed as being good. He had suffered ‘catastrophic losses’ during the Black Saturday bushfires in February 2009 and, as a result, suffered from post-traumatic stress disorder and acute depression.