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DPP v WRJ

DPP v WRJ

Case [2009] VSCA 174 3 August 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 670 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS
	v
WRJ

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JUDGES:	MAXWELL P,VINCENT and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 January 2009
DATE OF JUDGMENT:	3 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 174
JUDGMENT APPEALED FROM:	r v WRJ (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Pilgrim, 5 May 2008)

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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Sexual penetration of child under 10 – Indecent act with a child under 16 – Sexual penetration of child under 16 – Indecent assault – Persistent offending against same victim over seven years – Victim the offender’s niece – Total effective sentence of 3 years and 10 months, with a non-parole period of 1 year and 8 months – Whether manifestly inadequate – Whether insufficient cumulation – Significant mitigating factors – Delay of six years between complaint and sentence – Unfairness – Rehabilitation – Respondent suffering from severe depression – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Silbert SC with Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Mr P Tehan QC with Mr S Kennedy	Ronald V Tait

MAXWELL P
VINCENT JA:

After a trial in the County Court, the respondent (‘WRJ’) was convicted of two counts of sexual penetration of a child under 16, seven counts of committing an indecent act with a child under 16 and three counts of indecent assault. The offending took place between 1994 and 2001. The victim (‘P’) was nine when the offending began and 15 when it ceased. WRJ was seven and a half years older than P.

WRJ was sentenced as set out in the table below:

Sentence imposed

Count

Offence

Age of victim

Age of offender

Maximum penalty

Sentence

Cumulation

Penetration (digital) of child under 16

16-17

Base

Indecent act with child under 16 (IA)

16-17

18-19

20-21

Sexual penetration (penile) of child under 16

22-23

1y 6m

Indecent assault

Total effective sentence : 3y 10m
Non-parole period: 1y 8m

The Director of Public Prosecutions has appealed against the sentence, under s 567A of the Crimes Act 1958 (Vic), on the ground of manifest inadequacy. Complaint is made in respect of the sentence imposed on count 12 (sexual penetration of a child under 16), the total effective sentence and the non-parole period fixed. In support of the complaint that the total effective sentence was inadequate, a second ground contends that there was insufficient cumulation between counts.

For reasons which follow, we would dismiss the appeal.

The circumstances of the…

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 WRJ

Details

AGLC: DPP v WRJ [2009] VSCA 174
Case: [2009] VSCA 174
Decision Date: 3 August 2009

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) appealed against the sentence of WRJ, who had been convicted of multiple sexual offences against his niece. The case was heard in the Court of Appeal, which had to determine whether the original sentence was manifestly inadequate. The respondent had been sentenced to a total effective term of 3 years and 10 months, with a non-parole period of 1 year and 8 months, for charges including sexual penetration of a child under 10, indecent act with a child under 16, sexual penetration of a child under 16, and indecent assault. The Court was required to decide if the sentence was insufficiently cumulative and if the mitigating factors warranted a reduction. The respondent had a history of offending against the same victim over a seven-year period, and significant mitigating factors were considered, including the delay between the complaint and the sentence, and the respondent’s severe depression.

The Court examined the principles of sentencing for sexual offences, particularly those involving children, and the need to balance the protection of the community, denunciation, and the rehabilitation of the offender. It considered the severity and nature of the crimes, the duration of the offending, and the relationship between the offender and the victim. The Court noted the significant delay in bringing the case to trial, which impacted the sentence. It also considered the respondent's mental health and prospects for rehabilitation, which were deemed important mitigating factors. However, the cumulative effect of the offences and the need for general deterrence weighed heavily in favour of a substantial sentence.

After a thorough analysis, the Court concluded that the sentence was not manifestly inadequate. The total effective term and non-parole period reflected the seriousness of the crimes and the need for community protection. The Court found that the mitigating factors, while significant, did not warrant a reduction in sentence to the extent suggested by the respondent. The appeal was dismissed, and the original sentence was upheld as appropriate given the circumstances of the case. The Court emphasised the importance of ensuring sentences for such offences reflect their gravity and contribute to the deterrence of future crimes.

Orders