DPP v DJS - [2003] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 179 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
D.J.S.

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JUDGES:	PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2003
DATE OF JUDGMENT:	26 February 2003
MEDIUM NEUTRAL CITATION	[2003] VSCA 9

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CRIMINAL LAW - Sentencing - Sexual penetration with a child under 10 - Indecent acts - Incest - Producing child pornography - Six victims aged between four years and ten years - Offences committed by a natural father and step-father between 1985 and 2001 - Worst case category - Respondent sentenced as a serious sexual offender on 37 counts - Individual sentences manifestly excessive - Inadequate cumulation - Sentence of twelve years' imprisonment with non-parole period of nine years increased to sentence of sixteen years with a non-parole period of thirteen-and-a-half years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr C.J. Ryan	K. Robertson, Solicitor for Public Prosecutions
For the Defendant	Mr P.F. Tehan, Q.C. with Mr M. Gleeson	Michael J. Gleeson & Associates

PHILLIPS, C.J.:

I will ask my brother O’Bryan, A.J.A. to deliver the judgment of the Court.

O'BRYAN, A.J.A.:

The respondent was born in August 1958. On 3 June 2002 he pleaded guilty to 39 counts of sexual offending committed between 1985 and 2001 when he was aged between 26 and 44 years. He admitted two prior convictions for accosting for homosexual purposes in 1980 and indecent behaviour in 1984. Six victims of the offending will remain anonymous save for the use of an initial. They are all related to the respondent: a natural daughter and a natural son by his first wife, a natural daughter and a natural son by his second wife, his second wife’s daughter and son from another relationship. These six children were born between 1981 and 1994.

The counts included 6 counts of sexual penetration with a child under 10, 2 counts of indecent assault, 2 counts of gross indecency, 1 count of attempted sexual penetration with a child under 16, 8 counts of indecent act with a child under 16, 4 counts of indecent act in the presence of a child under 16, 13 counts of incest, 1 count of attempted incest, 1 count of producing child pornography and 1 count of being in possession of child pornography. A number of counts were laid as representative counts.

The maximum penalty prescribed by Parliament for:

(i)Sexual Penetration with a child under 10 is 20 years.
(ii)Indecent Assault is 5 years.
(iii)Gross indecency is 3 years.
(iv)Attempted sexual penetration with a child under 16 is 20 years.
(v)Indecent Act with a child under 16 is 10 years.
(vi)Indecent Act in the presence of a child under 16 is 10 years
(vii)Incest is 25 years.
(viii)Attempted incest is 20 years
(ix)Producing child pornography is 10 years.
(x)Being in possession of child pornography is 5 years.

The brief description of the facts in Annexure A attached to this judgment will starkly…

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 DJS

Details

AGLC: DPP v Djs [2003] VSCA 9
Case: [2003] VSCA 9
Decision Date: 26 February 2003

CaseChat Overview and Summary

In the case of DPP v DJS, the respondent was convicted and sentenced to a term of imprisonment for multiple sexual offences involving six victims, who were aged between four years and ten years, over a period from 1985 to 2001. The case was heard by the Court of Appeal, which had the task of reviewing the sentence imposed by the lower court. The Director of Public Prosecutions appealed the original sentence as being manifestly excessive, while the respondent cross-appealed arguing that the sentence was inadequate.

The central legal issue before the Court of Appeal was whether the original sentence imposed by the lower court was manifestly excessive or inadequate, given the nature and gravity of the crimes committed. The Court of Appeal was required to consider the principles of sentencing for serious sexual offences, particularly those involving multiple victims and the incestuous nature of the relationship, to determine whether the sentence was appropriate.

The Court of Appeal held that the original sentence was manifestly excessive. The Court found that while the crimes were of the most heinous kind, the individual sentences imposed for each count were excessive, and the cumulation of those sentences was inadequate. The Court increased the sentence to sixteen years' imprisonment with a non-parole period of thirteen-and-a-half years, reflecting the severity of the crimes and the need for general and specific deterrence. The Court emphasised the importance of proportionality in sentencing, ensuring that the punishment fits the crime while also considering the need to protect the community.

The Court of Appeal increased the sentence to sixteen years' imprisonment with a non-parole period of thirteen-and-a-half years, effectively allowing for a greater degree of deterrence and protection of the community. This decision underscores the importance of appropriate sentencing for serious sexual offences, particularly those involving multiple victims and incestuous relationships.

Orders