DPP v DZ - [2009] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 780 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
DZ

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JUDGES	NEAVE and BONGIORNO JJA and BYRNE AJA
WHERE HELD	WARRNAMBOOL
DATE OF HEARING	1 December 2009
DATE OF JUDGMENT	18 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 301	1st Revision 18 December 2009 [22], [30]
JUDGMENT APPEALED FROM	(Unreported, County Court of Victoria, Judge Pilgrim, 18 July 2008)

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CRIMINAL LAW – Sentence – Director’s appeal – Three counts of maintaining a sexual relationship with a child under 16 – Respondent sentenced to 12 years’ imprisonment with a non-parole period of 9 years – Judge erred in describing the offence of maintaining a sexual relationship created by s 47A of the Crimes Act 1958 as equivalent in effect to a representative count of a sexual offence – Sentence manifestly inadequate – Gravity of offending and principles of general and specific deterrence required imposition of very substantial sentences – Aggravating features included making of pornographic video, youth of victims, relationship of trust, duration of offending and use of threats and force – Appeal allowed – Respondent re-sentenced.

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Appearances:	Counsel	Solicitors
For the Director	Mr G J C Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr S Gillespie-Jones with Mr A Marshall	Paul Vale Criminal Law

NEAVE JA
BONGIORNO JA
BYRNE AJA:

The respondent pleaded guilty in the County Court to three counts of maintaining a sexual relationship with a child under 16.[1] The victims of the offences, SAS, SAM and SK, were the daughters of the respondent’s de facto wife. The maximum penalty for the offence of maintaining a sexual relationship is 25 years’ imprisonment.
[1]Under s 47A of the Crimes Act 1958.

After hearing a plea in mitigation of sentence, the learned judge sentenced him as follows:

Count

Victim

Term

Cumulation

1

SAS

5 years’ imprisonment

Base sentence

2

SAM

5 years’ imprisonment

3 years

3

SK

6 years’ imprisonment

4 years

This amounted to a total effective sentence of 12 years’ imprisonment. His Honour ordered that the respondent serve a non-parole period of 9 years and that he be sentenced as a serious sexual offender in relation to count 3, pursuant to Part 2A of the Sentencing Act 1991.

The Director now appeals against the individual sentences, the total effective sentence and the non-parole period. There are two grounds of appeal. The first ground claims that the sentence is manifestly inadequate and the second claims that the learned sentencing judge erred in treating each of the three counts as representative counts. We deal with the second ground first.

Ground 2

In his sentencing remarks the learned judge said that the offender had been presented on three counts, ‘which by their very nature, are representative’.[2] He continued as follows:

So there is no misunderstanding, I must tell you that the sentence I impose on each count must relate only to the specific offence charged. A representative count enables that…

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 DZ

Details

AGLC: DPP v DZ [2009] VSCA 301
Case: [2009] VSCA 301
Decision Date: 18 December 2009

CaseChat Overview and Summary

In this matter, the Director of Public Prosecutions appealed the sentencing of DZ, who was convicted on three counts of maintaining a sexual relationship with a child under 16 years of age. The case was heard in the Court of Appeal. The central issue was whether the original sentence of 12 years’ imprisonment with a non-parole period of 9 years was manifestly inadequate. The appeal hinged on whether the trial judge had erred in describing the offence as equivalent in effect to a representative count of a sexual offence and whether the sentence imposed was insufficient to reflect the gravity of the offending and the principles of general and specific deterrence.

The court found that the trial judge had indeed erred in characterising the offence of maintaining a sexual relationship as equivalent to a sexual offence, but this mischaracterisation did not affect the overall sentence. The appeal centred on the substantial disparity between the sentence and the nature and gravity of the offending. The court considered several aggravating factors, including the making of a pornographic video, the youth of the victims, the relationship of trust, the duration of the offending, and the use of threats and force. The court concluded that the sentence was manifestly inadequate and did not sufficiently reflect the principles of general and specific deterrence.

Upon allowing the appeal, the court re-sentenced DZ. The new sentence was not disclosed in the text provided. The decision underscores the importance of imposing sentences that adequately reflect the gravity of the offence and the need for strong deterrence in cases involving sexual exploitation of children.

Orders