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DPP v Wilson (a pseudonym)

DPP v Wilson (a pseudonym)

Case [2018] VSCA 263 17 October 2018

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0006

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ALEXANDER WILSON (a pseudonym)[1]	Respondent

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

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JUDGE:	WHELAN, T FORREST JJA and TAYLOR AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2018
DATE OF JUDGMENT:	17 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 263
JUDGMENT APPEALED FROM:	DPP v Alexander Wilson (a pseudonym) (Unreported, County Court of Victoria, Judge Cotterell, 20 December 2017)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Incest – Indecent act with a child under 16 years – Offending over several years – Whether individual sentences manifestly inadequate – Whether total effective sentence manifestly inadequate – Whether new total effective sentence and new non parole period manifestly inadequate – Appeal allowed – Respondent resentenced– New total effective sentence of nine years six months – New global non-parole period of seven years – Crimes Act 1958 (Vic) ss 44, 47 – DPP (Vic) v Dalgliesh (a pseudonym) (2017) 349 ALR 37.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B Kissane QC with Mr J Gullaci	Office of Public Prosecutions
For the Respondent	Ms F Todd with Mr N Jane	Stary Norton Halphen

WHELAN JA
T FORREST JA
TAYLOR AJA:

This Court recently observed that incest is an appalling crime involving a fundamental breach of trust.[2] A child is cynically exploited in a crime of violence. In this case, the offender/respondent was the child’s grandfather. He was also grandfather to three sisters, each of whom was also abused by him. At the time the impugned sentence was imposed, he was serving a sentence for offending against those other grandchildren.
[2]See R v Walsh (a pseudonym) [2018] VSCA 172.

On 29 November 2017 in the County Court, the respondent pleaded guilty to four charges of incest and three charges of indecent act with a child under 16. On 20 December 2017 he was sentenced as follows: [3]
[3]See Reasons for Sentence, DPP v Alexander Wilson (a pseudonym) [2017] VCC (County Court of Victoria, Judge Cotterell, 20 December 2017) (‘Sentence’) at [35].

Charge on Indictment H11380338

Offence

Maximum

Sentence

Cumulation

1

Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)

10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))

12 months’ imprisonment

1 month

2

Incest contrary to s 44(1) Crimes Act 1958 (Vic)

25 years’ imprisonment (s 44(1) Crimes Act (Vic))

54 months’ imprisonment

Base sentence

3

Indecent act with a child under 16 contrary to s 47(1) Crimes Act 1958 (Vic)

10 years’ imprisonment (s 47(1) Crimes Act 1958 (Vic))

6 months’ imprisonment

1 month

4

Incest contrary to s 44(1) Crimes Act 1958 (Vic)

25 years’ imprisonment (s 44(1) Crimes Act (Vic))

3 years’ imprisonment

1 month

5

Incest contrary to s 44(1) Crimes Act 1958

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 Wilson (a pseudonym)

Details

AGLC: DPP v Wilson (a pseudonym) [2018] VSCA 263
Case: [2018] VSCA 263
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Wilson, the appeal was brought before the court concerning the sentence handed down to the respondent, Wilson, for multiple counts of indecent acts with a child under 16 years. The trial judge found Wilson guilty of these offences, which occurred over several years, and sentenced him to a total effective sentence of eight years. The Crown, dissatisfied with the sentence, appealed to the court.

The primary legal issues that the court had to address were whether the individual sentences imposed for each count of indecent act were manifestly inadequate and whether the total effective sentence, along with the global non-parole period, was manifestly inadequate. The court considered the seriousness of the offences, the harm caused to the victim, and the need for deterrence and denunciation. The court also had to consider whether the new total effective sentence and new global non-parole period proposed by the Crown were manifestly inadequate.

The court concluded that the individual sentences were not manifestly inadequate, but the total effective sentence and the global non-parole period were. The court found that the trial judge had not adequately considered the cumulative impact of the offences on the victim and the need for general deterrence. The court allowed the appeal, and Wilson was resentenced to a new total effective sentence of nine years and six months imprisonment, with a new global non-parole period of seven years. The court held that this sentence was appropriate in the circumstances of the case and would adequately serve the purposes of punishment, deterrence, and denunciation.

In conclusion, the court allowed the Crown’s appeal and resentenced Wilson to a new total effective sentence of nine years and six months imprisonment, with a new global non-parole period of seven years. The court found that the original sentence did not adequately reflect the seriousness of the offences and the need for general deterrence. The new sentence was considered appropriate to serve the purposes of punishment, deterrence, and denunciation.

Orders