R v CVP - [2002] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5 of 2002

THE QUEEN
	v.
CVP

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JUDGES:	ORMISTON, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 October 2002
DATE OF JUDGMENT:	29 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 193

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CRIMINAL LAW – Sentencing – Incest – Sexual penetration of child under 10 years – Indecent assault – Offences against daughters of appellant – Complaints first made to police in 1993, but appellant not charged until 2001 – Pleas of guilty – Relevance of delay – Total effective sentence of 11 years and 10 months, with non-parole period of 9 years and 9 months held manifestly excessive – Appellant re-sentenced to total effective sentence of 10 years with non-parole period of 7 years and 6 months – Crimes (Sexual Offences) Act 1980.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms K. Robertson Solicitor for Public Prosecutions
For the Appellant	Mr D.F. Cosgriff	Morrissy and Deane

ORMISTON, J.A.:

On this appeal I have had the considerable benefit of reading the judgment of Eames, J.A. in draft form. For the reasons he has stated the appeal should be allowed and, to the extent proposed by him, the appellant should be resentenced. I add only these few comments, largely because this Court has just handed down a decision in a not dissimilar case, R. v. RND[1]. The present appeal revealed a serious case of the extended sexual abuse of two children over a period of five years, which included effectively six counts of incest, which has consistently been said to be deserving of condign punishment.[2] Some may wonder why the sentences in the present case differ from those passed in RND. It should be remembered that in RND this Court found no error and thus no basis for resentencing that applicant, nor was it a case which, at the time, appeared to justify giving appropriate warning as to the possible making of an order under s.568(4) of the Crimes Act 1958. In the present case, however, the Court has found there were errors such that it justifies the Court in resentencing this appellant. Because of those errors and the other matters described in the judgment of Eames, J.A., it has been seen necessary to reduce, though only to a small extent, the head sentence for each of the “incest counts”[3], but those sentences remain rather more severe than those passed in RND. The Court, in the circumstances, has decided that the substituted sentences are appropriate in this case having regard to the seriousness of this offending. There was no appeal by the DPP in the case of RND and so our function there was more limited. The two decisions thus should not be seen as being inconsistent one with the other, although, as I said in RND, the sentences there imposed, especially on the two incest counts, were modest.

VINCENT, J.A.:

[1][2002] VSCA 192.

[2]See, for example, the cases cited in…

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 R v CVP

Details

AGLC: R v CVP [2002] VSCA 193
Case: [2002] VSCA 193
Decision Date: 29 November 2002

CaseChat Overview and Summary

The appellant, CVP, was convicted of multiple offences of sexual penetration and indecent assault against his two daughters, which occurred over a number of years, starting when the youngest daughter was under 10 years of age. The offences came to light when the complainants made disclosures to police in 1993, though the appellant was not charged until 2001. He subsequently pleaded guilty to a total of 22 offences, and was sentenced to an effective total sentence of 11 years and 10 months imprisonment, with a non-parole period of 9 years and 9 months. The appellant appealed against the severity of the sentence. The court was required to consider the seriousness of the offences, the delay between the offences and the charges, and the appellant's guilty pleas.

The court held that, while the offences were of an extremely serious nature, the delay between the offences and the charges was relevant in assessing the appropriate sentence. The appellant had pleaded guilty to all charges, which also warranted some discount to the sentence. The court noted that the original sentence was at the higher end of the spectrum of sentences for such offences, and was manifestly excessive in the circumstances. The appellant was re-sentenced to a total effective sentence of 10 years, with a non-parole period of 7 years and 6 months. The court considered this to be a just and appropriate sentence, taking into account all relevant factors.

The appellant's appeal against sentence was dismissed, and the re-sentence of 10 years with a non-parole period of 7 years and 6 months was upheld. The court emphasised the importance of ensuring that sentences for serious sexual offences against children are proportionate and take into account all relevant factors, including the delay between the offences and the charges, and the offender's guilty pleas. The appropriate sentence must also be just and appropriate in all the circumstances, and not manifestly excessive. In this case, the original sentence was held to be manifestly excessive, and the re-sentence was considered to be a more just and appropriate outcome.

Orders