DPP v DCR - [2004] VSCA 103

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 45 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DCR

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JUDGES:	WINNEKE, P., ORMISTON and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2004
DATE OF JUDGMENT:	4 June 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 103

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CRIMINAL LAW – Sentencing – Director’s appeal – Incest, gross indecency and indecent acts (22 counts over 12 year period) – Offences committed with one child, two stepchildren and one outsider, each between ages of 4 and 15 – Sentences imposed in County Court for incest ranging from 12 months to 3 years and for other offences ranging from 2 months to 10 months, with total effective sentence of 8 years and non-parole period of 6 years – Manifestly inadequate terms for all but one count, as well as for total effective sentence and minimum term – Inappropriate approach to concurrency and cumulation – Sentences (on 21 counts) increased to range of 4 years 9 months to 7 years for incest and to range of 6 months to 2 years 9 months for other offences, but with less overall cumulation leading to total effective sentence of 11½ years with non-parole period of 9 years 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, QC, DPP Ms C. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr I. Alger	Stuthridge Leach & Associates

WINNEKE, P.:

I agree with Ormiston, J.A., for the reasons which he gives, that this appeal should be allowed; and that the respondent be re-sentenced in the manner which his Honour proposes.

ORMISTON, J.A.:

The Director of Public Prosecutions has appealed on several grounds against sentences handed down in the County Court following a plea of guilty to seven counts of gross indecency with a child under the age of 16 (contrary to s.50 of the Crimes Act 1958 (“the Act”) before its amendment in 1991), eight counts of committing an indecent act with a child under the age of 16 (contrary to s.47 of the Act (as amended)), six counts of incest (contrary to s.44 of the Act) and one count of committing an indecent act in the presence of a child under 16 (contrary to s.44 of the Act).

As it is preferable to set out the specific sentences imposed by the learned judge at the stage of this judgment where the details of the individual counts are described, it is sufficient at present to state the broad outcome of the sentencing hearing. On the seven counts of gross indecency[1] with some three children under the age of 16, for which a maximum penalty of three years’ imprisonment was fixed before the offence was abolished in 1991, the respondent was sentenced to terms varying from two to nine months’ imprisonment. On the eight counts of committing an indecent act[2] with two children under the age of 16, for which a maximum sentence of 10 years is fixed, the respondent was sentenced to terms…

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 DCR

Details

AGLC: DPP v DCR [2004] VSCA 103
Case: [2004] VSCA 103
Decision Date: 4 June 2004

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions (DPP) appealed the sentences imposed on DCR in the County Court of Victoria, where he was convicted of multiple offences of incest, gross indecency, and indecent acts committed over a 12-year period. The offences were committed against one child, two stepchildren, and one outsider, all aged between 4 and 15 years old. The County Court imposed sentences ranging from 12 months to 3 years for incest, and from 2 months to 10 months for other offences, resulting in a total effective sentence of 8 years and a non-parole period of 6 years. The DPP contended that the sentences were manifestly inadequate for each of the 22 counts, as well as for the total effective sentence and minimum term. The appeal focused on the concurrency and cumulation approach taken by the County Court.

The key legal issues the court was required to decide were whether the sentences imposed were manifestly inadequate and if the approach to concurrency and cumulation was appropriate. The court considered the gravity of the offences, the age and vulnerability of the victims, the duration and frequency of the offending, and the need for general and specific deterrence. The court also examined the total effective sentence and non-parole period to determine if they were appropriate in all the circumstances.

The court found that the sentences imposed by the County Court were manifestly inadequate for all but one count, as well as for the total effective sentence and minimum term. The court noted that the County Court had taken into account the need for general and specific deterrence but had failed to adequately consider the gravity of the offending and the need for denunciation. The court also found that the approach to concurrency and cumulation was inappropriate, as the County Court had not sufficiently considered the overlap between the offences. The sentences were increased accordingly, with a total effective sentence of 11½ years and a non-parole period of 9 years 3 months. The court emphasised the importance of ensuring that sentences reflect the seriousness of the offending and provide adequate deterrence and denunciation.

The court increased the sentences on 21 counts, with sentences for incest ranging from 4 years 9 months to 7 years, and sentences for other offences ranging from 6 months to 2 years 9 months. The total effective sentence was increased to 11½ years, with a non-parole period of 9 years 3 months. The court noted that while the sentences were still cumulative, they were less so than in the County Court, and appropriately reflected the seriousness of the offending and the need for general and specific deterrence.

Orders