DPP v GJL - [2004] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 326 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
G.J.L.

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JUDGES:	CHARLES, J.A. and BONGIORNO and O'BRYAN, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2004
DATE OF JUDGMENT:	11 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 35	1^st Revision – 19 March 2004

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Criminal law - Sentencing - Sexual offending by a grandparent with his three-year-old grand-daughter over a period of six months - Indecent acts - Incest - Producing and transmitting child pornography - Respondent sentenced as a serious sexual offender - Individual sentences manifestly inadequate - Individual sentences not reflecting criminality of the offence or the offender - Departure from proper approach in sentencing for multiple offences of a grave kind - Sentence of six years' imprisonment with non-parole period of four years increased to sentence of ten years with a non-parole period of seven years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. with Mr S. Cooper	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr T. Danos	Victoria Legal Aid

CHARLES, J.A.:

I will ask O'Bryan, A.J.A. to give the first judgment.

O'BRYAN, A.J.A.:

This is an appeal by the Director of Public Prosecutions against sentences imposed in the County Court on 13 October 2003. The respondent pleaded guilty on 9 October 2003 to 21 counts in a presentment containing 21 counts. He had no prior convictions and was aged 49 when the offending commenced. All of the counts concerned a female child who will be identified as M. She was aged three years and three months when the offences commenced and is a granddaughter of the respondent. The offences were committed between 1 June and 30 November 2002 save for count 20, which was committed on 21 March 2003, and count 21, which was committed on 4 April 2003.

The presentment charged the respondent with:

Four counts of an indecent act in the presence of M (counts 1, 8, 11 and 15) contrary to s.47(1) of the Crimes Act 1958; counts 1, 8, 11 and 15 are representative counts.
Seven counts of an indecent act with M (counts 4, 7, 9, 12, 13, 16 and 18) contrary to s.47(1) of the Crimes Act 1958; counts 4, 7, 9 and 13 are representative counts.
Six counts of incest with M (counts 2, 3, 5, 6, 10 and 14) contrary to s.47 of the Crimes Act 1958; counts 5, 6 and 10 are representative counts.
One count of attempted incest (count 17) contrary to s.321M of the Crimes Act 1958.
One count of producing child pornography (count 19) contrary to s.68 of the Crimes Act 1958; a representative count.
One count of transmission of child pornography (count 20) contrary to s.57A of the Classification (Publications, Films and Computer Games) Enforcement Act 1995; and -
One count of possessing child pornography (count 21) contrary to s.70 of the Crimes Act 1958.

The maximum penalties prescribed by Parliament for the offences charged…

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 GJL

Details

AGLC: DPP v GJL [2004] VSCA 35
Case: [2004] VSCA 35
Decision Date: 11 March 2004

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v GJL involved the respondent who was convicted of multiple sexual offences against his three-year-old granddaughter. These offences occurred over a period of six months and included indecent acts and incest. The respondent was also found guilty of producing and transmitting child pornography. The case was heard in the Court of Appeal, which had jurisdiction to review the severity of the sentence imposed.

The key legal issues the court had to address were whether the original sentence was manifestly inadequate and whether the individual sentences imposed for each offence adequately reflected the gravity of the crimes committed by the respondent. The court was also required to consider whether the sentencing judge had departed from the proper approach when dealing with multiple offences of a grave nature. In addition, the court examined whether the cumulative sentence and the non-parole period were appropriate given the severity of the crimes.

The Court of Appeal held that the individual sentences for each offence were manifestly inadequate and did not reflect the true criminality of the respondent's actions. The court found that the sentencing judge had not properly considered the cumulative effect of the multiple offences, which were of a grave kind. As a result, the court increased the overall sentence to ten years' imprisonment with a non-parole period of seven years. This reflected a more accurate representation of the severity of the crimes and the culpability of the respondent.

The court's decision emphasised the importance of ensuring that sentences for multiple serious offences are not only individually adequate but also cumulatively sufficient to reflect the true nature of the crimes committed. The court's ruling serves as a reminder to sentencing judges to consider the totality of an offender's criminal conduct when determining an appropriate sentence.

Orders