CRIMINAL LAW – APPEAL - SENTENCE – Director’s appeal – Maintaining a sexual relationship with a child under 16 – Producing child pornography – Relationship with 14 year old – Total effective sentence of 5 years and 8 months, with a non-parole period of 3 years – Victim over 5 months – Whether manifestly inadequate – Significance of remorse and rehabilitation – Protection of the community – Culpability – Sentencing range – Current sentencing practices – Appeal allowed – Resentenced to eight years’ imprisonment and a non-parole period of five years and six months.
CRIMINAL LAW – SENTENCE – Maintaining a sexual relationship with a child under 16 – Adequacy of current sentencing practices – Whether consistent with statutory maximum – Discretion to impose a sentence higher than current practice – R v AB (No 2) (2008) 18 VR 391 – Sentencing Act 1991 (Vic) s 5(2)(a), (b).
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr G J C Silbert SC with Mr B L Sonnett
Mr S Ward, Acting Solicitor for Public Prosecutions
For the Respondent
Mr O P Holdenson QC with Mr D A Dann
James Dowley & Associates
MAXWELL P VINCENT JA NEAVE JA:
On 26 February 2008, the respondent (‘DDJ’) pleaded guilty in the County Court to one count of maintaining a sexual relationship with a child under 16[1] and one count of producing child pornography. On 7 March 2008, he was sentenced to five years’ imprisonment on the first count and two years’ imprisonment on the second, with a direction that eight months of the sentence on count 2 be served cumulatively on the sentence on count 1. The total effective sentence was therefore five years and eight months. A non-parole period of three years was fixed.
[1]The offence has since been renamed ‘Persistent sexual abuse of a child under 16’: Crimes Act1958 (Vic) s 47A.
The Director of Public Prosecutions has appealed pursuant to s 567A of the Crimes Act 1958 (Vic) on the ground that the individual sentences, the order for cumulation, the total effective sentence and the non-parole period are each manifestly inadequate. The maximum penalty for the offence of maintaining a sexual relationship with a child under 16 is 25 years’ imprisonment. The maximum penalty for producing child pornography is 10 years’ imprisonment.
For reasons which follow, we would allow the appeal and resentence DDJ as follows: on count 1, seven years’ imprisonment; and on count 2, three years’ imprisonment. In accordance with s 6E of the Sentencing Act1991 (Vic),[2] we will direct that two years of the sentence imposed on count 2 be served concurrently with the sentence imposed on count 1. The total effective sentence is therefore eight years.…
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 DDJ [2009] VSCA 115
Case
[2009] VSCA 115
Decision Date
CaseChat Overview and Summary
In the case of the Director of Public Prosecutions v DDJ, the appellant sought to appeal the sentence imposed upon the respondent for engaging in a sexual relationship with a child under 16 years of age and for producing child pornography. The matter was heard in the Court of Appeal, where the primary concern was the adequacy of the original sentence. The respondent had been sentenced to a total effective term of 5 years and 8 months, with a non-parole period of 3 years.
The court had to determine whether the sentence was manifestly inadequate, particularly in light of the respondent's culpability, the need to protect the community, and the statutory maximum penalty for the offences committed. The court also considered the significance of the respondent's remorse and efforts towards rehabilitation, as well as the sentencing range and current sentencing practices in similar cases. The appeal hinged on whether the original sentence was inconsistent with the statutory maximum and if there was room for the court to exercise its discretion to impose a sentence higher than current practice.
In reaching its decision, the court reviewed the principles outlined in R v AB (No 2) and the Sentencing Act 1991. The court found that the original sentence was indeed manifestly inadequate, given the gravity of the respondent's offences and the need to protect the community. The appeal was allowed, and the respondent was resentenced to eight years' imprisonment with a non-parole period of five years and six months. This decision underscored the importance of ensuring that sentences reflect the seriousness of such crimes and align with statutory maxima and current sentencing practices.