JUDGES:	NETTLE, ASHLEY and REDLICH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2007
DATE OF JUDGMENT:	22 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 129

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CRIMINAL LAW – Sentencing – Director’s appeal – Manifest inadequacy – Sexual penetration with children under 16 – Indecent acts – Incest – Producing and possessing child pornography – Offences committed by natural father, mother and step-father over many years – Worst case offending – Volunteered confessions of crimes that may otherwise not have come to light for many years – Respondents sentenced as serious sexual offenders – One respondent re-sentenced to a higher term of imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent OJA	Mr L C Carter with Mr R F Edney	Verhoeven & Curtain Solicitors
For the Respondent WBA	Mr P G Priest QC with Mr S R Johns	Cameron J Hannebery Solicitors
For the Respondent EBD	Mr P M Taft SC with Ms F L Dalziel	Robert Davis

NETTLE JA:

This is an appeal by the Director of Public Prosecutions against sentences of imprisonment imposed on the respondents upon their pleading guilty to a range of interrelated sexual offences committed between 1998 and 2005.

The respondent OJA was born on 22 September 1955 and therefore is now 51 years of age. At the time of offending (between 31 December 1998 and 23 August 2005) he was between 43 and 49 years of age. On 18 October 2006 he pleaded guilty before a judge of the County Court to nine counts of incest (counts 1, 2, 3, 4, 8, 9, 10, 11 and 12); 17 counts of indecent act with a child under 16 years of age (counts 5, 6, 7, 13, 14, 16 , 17, 19, 22, 23, 25, 26, 28, 31, 34, 36 and 37); 15 counts of taking part in an act of sexual penetration with a child under 16 years of age (counts, 15, 18, 20, 21, 24, 27, 29, 30, 32, 33, 35, 38, 39, 40 and 41); one count of producing child pornography (count 42); and one count of possessing child pornography (count 43).

On 1 November 2006, the judge sentenced OJA on each of the nine counts of incest to six years’ imprisonment; on each of the counts of indecent act with a child under 16 years of age, to four years’ imprisonment; on each of the counts of taking part in an act of sexual penetration with a child under 16 years of age, to five years’ imprisonment; on the count of producing child pornography, to two years’ imprisonment; and on the count of possessing child pornography, to one year imprisonment. The judge ordered the one year of each…

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 OJA

Details

AGLC: DPP v OJA [2007] VSCA 129
Case: [2007] VSCA 129
Decision Date: 22 June 2007

CaseChat Overview and Summary

The Director of Public Prosecutions has appealed against the sentences handed down to three respondents who were convicted of various serious sexual offences against children. The respondents included the natural father and mother of the victims, as well as the step-father of two of the victims. The offences involved sexual penetration and indecent acts with children under the age of 16, as well as the production and possession of child pornography. The respondents had committed these offences over many years, and had volunteered confessions that may have otherwise remained undetected. The respondents were originally sentenced as serious sexual offenders, but the Director of Public Prosecutions sought a higher term of imprisonment for one of the respondents.

The legal issues before the court were whether the sentences handed down were manifestly inadequate and whether the court had erred in its assessment of the gravity of the offences. The Director of Public Prosecutions argued that the sentences were too lenient given the gravity of the offences, the vulnerable nature of the victims, and the prolonged duration of the offending. The respondents, on the other hand, argued that the sentences reflected the totality of the circumstances, including the fact that they had volunteered confessions and had shown remorse.

The court found that the sentences were indeed manifestly inadequate, and that the respondents had committed some of the worst cases of offending against children that the court had encountered. The court found that the gravity of the offences, the vulnerability of the victims, and the prolonged duration of the offending warranted a higher term of imprisonment. The court also found that the respondents had not shown sufficient remorse, and that the sentences did not adequately reflect the seriousness of the offending. As a result, the court re-sentenced one of the respondents to a higher term of imprisonment, and increased the sentences of the other two respondents.

The court ordered that the respondents be re-sentenced to terms of imprisonment that reflected the gravity of their offending. The court also ordered that the respondents be subject to supervision orders and be placed on the sex offender register. The court found that the original sentences did not adequately address the needs of the community or provide sufficient deterrence against similar offending in the future. The court emphasised the importance of ensuring that sentences reflect the gravity of serious sexual offences against children, and that they provide adequate protection to the community and victims of such offences.

Orders