DPP v VH

Case [2004] VSCA 180 7 October 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 170 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
VH

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JUDGES:	CALLAWAY, BUCHANAN AND EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2004
DATE OF JUDGMENT:	7 October 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 180

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Criminal law – Six counts of incest – One count of being in possession of child pornography – Crown appeal against sentence – Whether sentences imposed for incest manifestly inadequate – Whether use of child pornography in attempt to debauch victim a circumstance of aggravation of incest – Representative counts – Absence of remorse and insight – Total effective sentence of seven years' imprisonment with non-parole period of five years set aside – Double jeopardy – Total effective sentence of nine years' imprisonment with non-parole period of seven years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R. Elston	K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr D. Grace, Q.C. Mr M.J. Croucher	Robert Stary & Associates

CALLAWAY, J.A.:

The respondent, who is now aged 36, pleaded guilty in the County Court to six counts of incest (counts 1 to 6) and one count of being in possession of child pornography (count 7). The maximum custodial penalties for those offences are 25 years’ and 5 years’ imprisonment respectively. Counts 1 and 2 were representative counts. The respondent had no previous convictions or findings of guilt and was to be sentenced as a person who, but for these offences, was of good character, but he stood to be sentenced on counts 3 to 6 as a serious sexual offender. After hearing a plea for leniency on his behalf, the learned judge sentenced him to five years’ imprisonment on each of counts 1 and 2, three years’ imprisonment on each of counts 3 and 4, four years’ imprisonment on each of counts 5 and 6 and 12 months’ imprisonment on count 7. His Honour directed that two years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1 but that otherwise all the sentences were to be served concurrently.[1] That resulted in a total effective sentence of seven years’ imprisonment, in respect of which a non-parole period of five years was fixed.
[1]That was necessary because, by reasons of s.6E of the Sentencing Act 1991, the sentences imposed on counts 3 to 6 would be served cumulatively unless otherwise directed.

The Director of Public Prosecutions appeals against the sentence on the ground that it is manifestly inadequate. It is not contended that the provisions of s.6D(b) of the Sentencing Act 1991 should have been invoked, but it is contended that the judge failed adequately to reflect the gravity of the offences, both generally and in this particular case; that his Honour failed to take into account, or sufficiently to take into account, the aspects of both general and specific deterrence; and that he gave too much weight to factors going to mitigation and insufficient weight to…

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 VH [2004] VSCA 180
Case: [2004] VSCA 180
Decision Date: 7 October 2004

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions (DPP) appealing against the sentence imposed on an individual, referred to as VH, who had been convicted of six counts of incest and one count of possessing child pornography. The Court of Appeal was tasked with determining whether the sentences imposed for the incest were manifestly inadequate and whether the possession of child pornography was a circumstance of aggravation of the incest. Additionally, the court had to consider the principles of double jeopardy in light of the sentences imposed.

The court examined the severity and nature of the crimes committed by VH, including the use of child pornography in an attempt to debauch the victim. It was crucial to determine if the sentences imposed were adequate, taking into account the aggravating factors. The court also considered the absence of remorse and insight displayed by VH. The total effective sentence of seven years' imprisonment, with a non-parole period of five years, was set aside due to the manifestly inadequate nature of the sentence.

The Court of Appeal substituted a total effective sentence of nine years' imprisonment, with a non-parole period of seven years. This decision was made while adhering to the principles of double jeopardy, ensuring that VH was not punished twice for the same offence. The court held that the original sentences did not appropriately reflect the gravity of the crimes and the circumstances surrounding the offences.

The final orders of the court were to replace the original sentences with a total effective sentence of nine years' imprisonment, with a non-parole period of seven years, reflecting the seriousness of the crimes committed by VH.

Orders