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:
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
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
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…
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 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.