[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the respondent’s name.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest, indecent assault (2) – Representative charges – Sentenced to 4y for incest, 1y for each indecent assault – Total effective sentence 5y, with non-parole period 2y 10m – Whether manifestly inadequate – Victim aged 11–13, offender 35–37 – Breach of trust and abdication of parental responsibility – Offender voluntarily disclosed part of offending – Sentencing discount warranted – Link with offender’s experience of childhood sexual abuse – Whether moral culpability reduced – Residual discretion – Whether matter of principle raised – Appeal allowed – Resentenced to 7y 4m with non-parole period of 5y – DPP v Dalgliesh(a pseudonym)[2016] VSCA 148, DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, R v Doran [2005] VSCA 271 applied – Criminal Procedure Act 2009 s 287.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Ms K E Judd QC with Ms R J Sharp
Mr J Cain, Solicitor for Public Prosecutions
For the Respondent
Mr O P Holdenson QC with Mr T S Lynch
Brian Birrell
MAXWELL P
McLEISH JA:
Summary
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility.[2] Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[3]
Incest involving a child is, moreover, a crime of violence. As the Sentencing Advisory Council has pointed out, sexual penetration of a child is inherently violent, whether or not it is accompanied by additional non-sexual violence.[4] Often, as in the present case, the act of sexual penetration causes the child actual physical pain.
[4]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [46] (‘Dalgliesh [No1]’). See also Sentencing Advisory Council, Sentencing of Offenders: Sexual Penetration with a Child under 12 (10 June 2016) 63.
In this case, the offender (‘M’) was the stepfather of the victim (‘K’), having married her mother. He pleaded guilty to three representative charges of sexual offending. The charges related, respectively, to digital penetration (charge 1), penile-vaginal penetration (charge 2) and lingual penetration (charge 3).[5] In each case, the representative charge related to multiple…
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 Walsh (a pseudonym) [2018] VSCA 172
Case
[2018] VSCA 172
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Victoria, the Director of Public Prosecutions appealed the sentence of a man, referred to as Walsh, convicted of incest and two counts of indecent assault. The victim was aged between 11 and 13 years old, while Walsh was between 35 and 37 years old at the time of the offences. Walsh was sentenced to four years imprisonment for the incest charge and one year for each count of indecent assault, with the total effective sentence amounting to five years, and a non-parole period of two years and ten months. The appeal centred on whether the sentence was manifestly inadequate.
The central legal issues the court needed to decide were whether the sentence was manifestly inadequate and, if so, whether the matter raised a question of principle warranting interference. The appeal hinged on whether the sentence imposed was insufficient considering the gravity of the offences and the breach of trust by Walsh. The court also needed to determine if Walsh's history of childhood sexual abuse should reduce his moral culpability and if a discount in sentencing was warranted for his voluntary disclosure.
The court found the sentence to be manifestly inadequate, taking into account the severity of the breach of trust and the abdication of parental responsibility by Walsh. The court noted the significant impact on the victim and the community's need for denunciation and deterrence. The sentencing discount for Walsh’s voluntary disclosure and his history of childhood sexual abuse were considered, though not enough to fully justify the original sentence. The court found that the matter did not raise a question of principle, but the sentence needed to be increased to appropriately reflect the community’s expectations. Walsh was ultimately resentenced to seven years and four months imprisonment, with a non-parole period of five years.