Criminal law - sentence - appeal by DPP against sentence on grounds of manifest inadequacy - offences of "incest" (1 count) and "indecent act" (1 count) - sentences of 12 months (incest) and 6 months (indecent act) manifestly inadequate - appeal allowed.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr T. Gyorffy
Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent
Mr M.J. Croucher
Victoria Legal Aid
WINNEKE, P.:
This is a Director's appeal brought pursuant to s.567A of the Crimes Act 1958. On 23 November 2001, the respondent pleaded guilty before the County Court at Melbourne to one count of incest and one count of committing an indecent act with a child under the age of 16. The child in question (whom I shall call "the complainant") was the stepdaughter of the respondent and was the daughter of a woman (whom I shall call "J"), with whom the respondent had been living as man and wife for a period of more than ten years by the time when the offences occurred. At the time when cohabitation commenced between the respondent and J. in 1989, the complainant was aged three. At the time when these offences occurred in June 2001, she was 14 years of age. The relationship between the respondent and J. had, by then, produced five other children whose ages ranged from eight years to eight months.
Following the pleas of guilty, the judge imposed sentence on 26 November 2001. The sentences imposed were as follows:
(a) on the count of incest : 12 months' imprisonment;
(b) on the count alleging indecent act: 6 months' imprisonment.
His Honour directed that three months of the sentence imposed on count 2 be served cumulatively upon the 12 months imposed on count 1. The total effective sentence was therefore 15 months and his Honour ordered the respondent to serve six months before becoming eligible for parole. He declared that 89 days had already been served pursuant to the sentences.
The Director has appealed to this Court on the ground that the sentences are manifestly inadequate.
The salient facts can be shortly summarised. The respondent, who is now 34 years of age, commenced to cohabit with J. in Mount Gambier when he was approximately 22 years old. His family had moved to Mount Gambier from Elwood in Victoria in the early 1980s following the collapse of his father's jewellery business. In 1985 his father died when the respondent was about 17 years old. The respondent, who had apparently been close to his father, appears to have reacted badly to his father's death. He had various jobs in and around Mount Gambier, but appears to have been psychologically vulnerable at the time when he…
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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Details
AGLC
DPP v G [2002] VSCA 6
Case
[2002] VSCA 6
Decision Date
CaseChat Overview and Summary
In the matter of the Director of Public Prosecutions versus G, the case involved an appeal by the Director of Public Prosecutions against the sentence imposed on G for offences of incest and indecent act. The appeal was lodged in the Court of Appeal of a State in Australia, where the original sentencing was deemed to be manifestly inadequate. The accused, G, was convicted on one count of incest and one count of indecent act, and was sentenced to 12 months for the incest offence and 6 months for the indecent act offence, to be served concurrently.
The primary legal issue before the court was whether the sentences imposed by the trial judge were manifestly inadequate, warranting an appeal by the Director of Public Prosecutions. The court needed to consider the nature and severity of the offences, the principles of sentencing in criminal law, and whether the sentences reflected the gravity of the crimes committed. The court also needed to assess whether the sentences were so inadequate as to shock the conscience of the court.
In delivering the judgment, the Court of Appeal found that the sentences imposed were indeed manifestly inadequate. The court considered the nature of the offences, which involved serious breaches of familial and moral boundaries, and the impact of such acts on the victims. The court held that the sentences did not adequately reflect the seriousness of the crimes and the need for deterrence and denunciation. Consequently, the appeal was allowed, and the sentences were set aside. The matter was remitted to the sentencing court for re-sentencing, with the court directed to impose sentences that appropriately reflected the gravity of the offences.