DPP v WJW - [2000] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 54 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
WJW

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JUDGES:	BROOKING, ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2000
DATE OF JUDGMENT:	26 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 170

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CRIMINAL LAW – Sentence – Maintaining sexual relationship with child under 16 – “Family friend” of 56 and girl of 12 with mental age of nine – Pregnancy – Offender “in love” with victim – Three years’ imprisonment suspended as to two manifestly inadequate.

CRIMINAL LAW – Sentence – Quashed – Re-sentencing – Change in circumstances since original sentence – Adverse to offender – Sexual offence against child – Pregnancy – Attempted termination found unsuccessful after original sentence – Whether birth relevant in re-sentencing.

Crimes Act 1958, ss.567A(5), 574.

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APPEARANCES:	Counsel	Solicitors
For the Crown	P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Respondent	P. Morrissey	Victorian Legal Aid

BROOKING, J.A.:

The facts of this case are unusual in a field in which the remarkable has become commonplace. For something like a year and a half a man of about 57 – a “family friend” of the victim – maintained a sexual relationship with a girl, aged 12 and then 13, and with a mental age of 9 or 10. She often stayed overnight at his home, mainly at weekends, where he had a computer which she used for her school work. How many times he had sexual intercourse with her – in the ordinary sense of those words – will never be known. He admitted to about a dozen occasions, but later in his recorded interview said that there had been sexual encounters more than 20 times, about three-quarters of them ending in intercourse.

The facts thus far narrated might not be described as unusual in this field with which judges are so much concerned nowadays, but further facts make the case notable. The first of these is the offender’s own attitude to his offending (an attitude which has not changed since the offence came to light): he looked upon himself as living in a de facto relationship with the young girl – a “husband and wife” arrangement – and said that she was an excellent friend and that he was in love with her and she with him. He wanted them to live together on a full-time basis as if they were man and wife. Even at the time of sentence he felt hurt that he was not able to see the girl and believed that she wanted to see him.

The next thing helping to make this case unusual is that he impregnated the girl: indeed, this is what led to the discovery of the relationship. In my experience pregnancy in cases of serious sexual abuse of children who have reached puberty, while by no means unknown, is not as common as one might expect. The victim here had an operation to terminate the pregnancy, which was…

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 WJW

Details

AGLC: DPP v WJW [2000] VSCA 170
Case: [2000] VSCA 170
Decision Date: 26 September 2000

CaseChat Overview and Summary

In the case of DPP v WJW, the defendant was originally sentenced to a suspended prison term for engaging in a sexual relationship with a child under the age of 16. The relationship, which began when the victim was 12 years old but had the mental age of a nine-year-old, resulted in the victim becoming pregnant. The offender claimed to be "in love" with the victim, who considered him a "family friend." The original sentence was deemed manifestly inadequate and was quashed. The case returned for re-sentencing, taking into account the change in circumstances since the original sentence, specifically the unsuccessful attempted termination of the pregnancy and the subsequent birth of the child.

The primary legal issues addressed in the case were the adequacy of the original sentence and the appropriate sentence to be imposed following the change in circumstances. The court had to consider the nature and seriousness of the offence, the offender's culpability, and the potential impact of the change in circumstances on the offender's culpability and the sentence. The court also had to decide whether the birth of the child was a relevant factor in determining the new sentence.

The court, in reviewing the original sentence, found it manifestly inadequate and quashed it. In re-sentencing, the court considered the increased culpability of the offender due to the unsuccessful attempted termination of the pregnancy and the subsequent birth of the child. The court held that the birth of the child was a relevant factor in determining the new sentence, as it further highlighted the seriousness of the offender's conduct and the impact on the victim. The court imposed a sentence of imprisonment, which was deemed appropriate in the circumstances. The court also noted that the original sentence was suspended as to two, indicating that it was still considered inadequate even with the change in circumstances.

The court made an order that the sentence of imprisonment be served in a way that the offender would spend two years in custody. The sentence was suspended as to two, meaning that the offender would not serve the entire sentence if they behaved well during the period of suspension.

Orders