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DPP v Tewksbury (a pseudonym)

DPP v Tewksbury (a pseudonym)

Case [2018] VSCA 38 27 February 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0006

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
CHARLIE TEWKSBURY (A pseudonym)[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	TATE and KYROU JJA and KIDD AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2018
DATE OF JUDGMENT:	27 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 38
JUDGMENT APPEALED FROM:	DPP v Tewksbury (a pseudonym) [2016] VCC 1918 (Judge Gaynor)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – One charge of producing child pornography, four charges of indecent act with child under 16, two charges of incest, one charge of possessing child pornography – Offences against respondent’s stepdaughter over 2.5 year period when she was aged 12–14 – Sentenced to 4 years’ imprisonment, with non-parole period of 2 years, 10 months – Whether manifestly inadequate – Incest offences involved persistence in face of protests and obvious distress on part of victim – Respondent recorded videos of incest offending and one indecent act – One video placed in shared Dropbox file to which at least one other person had access – Appeal allowed – Resentenced to 9 years, 7 months’ imprisonment, with non-parole period of 7 years – DPP v Dalgliesh [2016] VSCA 148, DPP v Dalgliesh (2017) 349 ALR 37, DPP v Dalgliesh [2017] VSCA 360, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B L Sonnet with Mr M D Phillips	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr R F Edney with Mr J Taaffe	Doogue + George

TATE JA

KYROU JA
KIDD AJA:

Introduction and summary

On 18 November 2016, the respondent pleaded guilty to the charges set out in the following table and, on 9 December 2016, he was sentenced as set out in that table.[2]
[2]DPP v Tewksbury (a pseudonym) [2016] VCC 1918 (‘Sentencing remarks’).

Charge Offence Maximum Sentence Cumulation

1 Produce child pornography [Crimes Act 1958 s 68(1)] 10 y 18 m 2 m

2 Indecent act with a child under 16 [Crimes Act 1958 s 47(1)] 10 y 10 m 2 m

3 Incest [Crimes Act 1958 s 44(1)] 25 y 2 y 8 m

4 Indecent act with a child under 16 10 y 12 m 4 m

5 Indecent act with a child under 16 10 y 6 m 2 m

6 Incest 25 y 2 y Base

7 Indecent act with a child under 16 10 y 12 m 4 m

8 Possessing child pornography [Crimes Act 1958 s 70(1)] 5 y 8 m 2 m

Total Effective Sentence: 4 y

Non-Parole Period: 2 y, 10 m

Pre-Sentence Detention Declaration: 21 days

Section 6AAA Statement: 5 y with a non-parole period of 3 y, 6 m

Other Orders: Pursuant to s 34 Sex Offenders Registration Act 2004, the length of…

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 Tewksbury (a pseudonym)

Details

AGLC: DPP v Tewksbury [2018] VSCA 38
Case: [2018] VSCA 38
Decision Date: 27 February 2018

CaseChat Overview and Summary

The Director of Public Prosecutions has appealed the sentence of Tewksbury, who was convicted on one count of producing child pornography, four counts of an indecent act with a child under 16, two counts of incest, and one count of possessing child pornography. The offences were committed against the respondent's stepdaughter over a period of 2.5 years when she was aged between 12 and 14. The trial judge sentenced Tewksbury to a total of 4 years imprisonment, with a non-parole period of 2 years, 10 months. The appeal focused on whether the sentence was manifestly inadequate.

The court needed to determine if the sentence was manifestly inadequate in light of the severity of the crimes committed. The respondent's conduct involved a persistent pattern of abuse over a significant period, marked by the respondent's recording of the offending and sharing one of the videos with at least one other individual. The victim had expressed distress and resistance to the abuse. The gravity of the offences was compounded by the respondent's disregard for the victim's protests and obvious distress. The court also considered relevant case law, such as DPP v Dalgliesh, which discussed the principles of sentencing in similar cases.

The Court of Appeal found the original sentence to be manifestly inadequate, taking into account the gravity of the offences, the persistence of the abuse, and the respondent's actions in recording and sharing the abuse. The Court re-sentenced Tewksbury to a total of 9 years, 7 months’ imprisonment, with a non-parole period of 7 years. This new sentence reflected the seriousness of the crimes and the need to adequately punish and deter such behaviour.

The final orders of the court were that the appeal be allowed, the original sentence be quashed, and Tewksbury be re-sentenced to a total of 9 years, 7 months’ imprisonment, with a non-parole period of 7 years.

Orders