DPP v TDJ

Case [2009] VSCA 317


SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 578 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

v

TDJ

No 577 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

v

MS

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JUDGES:

MAXWELL P, ASHLEY and NEAVE JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

20 July 2009

DATE OF JUDGMENT:

23 December 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 317

JUDGMENT APPEALED FROM:

DPP v TDJ;  DPP v MS (Unreported, County Court of Victoria, Judge Jenkins, 6 March 2009)

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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Production of child pornography – Incest – Principal victim was second respondent’s daughter – Drug administered to enable first respondent to take pornographic photographs – Other victims very young girls – Sentences of 5 years 7 months (first respondent) and 1 year 8 months  (second respondent) manifestly inadequate – Appeal allowed – Resentenced.

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APPEARANCES: Counsel Solicitors
For the Director Mr C J Ryan SC

Mr C Hyland, Solicitor for Public Prosecutions

For the First Respondent
(TDJ)

Mr P F Tehan QC with
Mr S P Kennedy

Ronald V Tait Solicitors
For the Second Respondent
(MS)
Mr M E Dean SC with
Mr A S Dickenson
Martin Irwin & Richards

MAXWELL P

NEAVE JA:

  1. This is an appeal by the Director against sentences imposed on TDJ and MS for child sex offences.  TDJ pleaded guilty to seven counts, involving four children (two of whom were daughters of MS).  MS pleaded guilty to three counts, all involving her 13 year old daughter (R).  They were sentenced as set out below:

TABLE A:  Sentences imposed

Count Offence Maximum Sentence imposed –
TDJ
Cumulation Sentence imposed –
MS
Cumulation

1

Production of child pornography

10y

8m

8m

-

-

2

Production of child pornography

10y

8m

4m

-

-

3

Administer a drug for the purposes of sexual penetration

10y

18m

15m

-

-

4

Indecent act with a child under 16

10y

-

-

8m

6m

5

Incest

25y

2y

BASE

-

-

6

Production of child pornography

10y

8m

4m

4m

4m

7

Procuring a child under 16 to take part in an indecent act

(Representative)

10y

1y

8m

10m

BASE

8

Indecent act with a child under 16

10y

6m

4m

-

-

TDJ  Total effective sentence  5y 7m

Non-parole period  4y 6m

MS   Total effective sentence  1y 8m

Non-parole period  1y

  1. The Director has appealed both sentences, on the ground of manifest inadequacy.  For reasons which follow, we would allow the appeal, set aside the sentences, and re-sentence the respondents as set out in Table B.

The applicable sentencing range

  1. As was pointed out in R v MacNeil-Brown,[1] the submission on a Director’s appeal that a sentence is ‘manifestly inadequate’ is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion in the circumstances of the case.  In our experience, consideration of such a submission is facilitated when the Director identifies what the applicable range was.  On several…

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DPP v TDJ [2009] VSCA 317
Case
[2009] VSCA 317
Decision Date

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus TDJ, the Court of Appeal was presented with an appeal against sentences imposed on two respondents who had been convicted of producing child pornography. The case involved serious allegations of incest and the exploitation of very young children, including the principal victim, who was the second respondent's daughter. The first respondent had administered a drug to the victim to enable the taking of pornographic photographs. The original sentences imposed by the trial judge were 5 years and 7 months for the first respondent and 1 year and 8 months for the second respondent. The Director of Public Prosecutions argued that these sentences were manifestly inadequate in light of the gravity of the crimes.

The legal issues before the court were whether the sentences were manifestly inadequate, and if so, what appropriate sentences should be imposed. The court considered the principles of sentencing for such serious offences, taking into account the nature and circumstances of the crimes, the culpability of the respondents, and the need for deterrence and denunciation. The court also examined the impact of the crimes on the victims, who were very young and in vulnerable circumstances.

The Court of Appeal held that the sentences imposed were manifestly inadequate. The court emphasised the heinous nature of the crimes and the significant harm caused to the victims. It was noted that the sentences did not reflect the gravity of the offences or adequately serve the purposes of punishment, including deterrence and denunciation. The appeal was allowed, and the respondents were resentenced. The first respondent was resentenced to 12 years imprisonment, while the second respondent was resentenced to 5 years and 6 months imprisonment. The court made clear that the new sentences were intended to reflect the seriousness of the crimes and to uphold the principles of justice.

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