R v D L M - [1999] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 143 of 1998

THE QUEEN
v
D.L.M.

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JUDGES: PHILLIPS, C.J., ORMISTON and BATT, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 10 November, 1998.
DATE OF JUDGMENT: 11 February, 1999.
MEDIA NEUTRAL CITATION: [1999] VSCA 6

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CRIMINAL LAW - Sentencing - Sexual offences on step-children - Counts representative - Guilty plea shortly before re-trial commenced - Judge not informed of individual sentences of previous judge - Whether bound to have regard to and not exceed latter's sentence - Counts somewhat different - Favourable findings on rehabilitation - Whether sentence manifestly excessive.

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APPEARANCES: Counsel Solicitors
For the Crown Mrs C. M. Quin P. C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr P. F. Tehan, Q.C. David Tonkin and
Associates

PHILLIPS, C.J.:

The applicant, who is aged 44, pleaded guilty in the County Court at Melbourne on 9 June last to two counts of indecent assault (counts 1 and 3 on the presentment); one count of attempted sexual penetration of a child under ten (count 2) and one count of sexual penetration of a child under ten (count 4). The Court was informed that these counts were “representative charges”.
These offences, which occurred between October, 1988 and September, 1989 involved three different complainants with whom the applicant then lived. These were, and I shall use initials, “S” (count 1), “C” (count 2) and “T” (counts 3 and 4). The offences carried maximum penalties of five years’, ten years’ and 20 years’ imprisonment respectively. The victims were all step children of the applicant. “S” was born on 16 August, 1979, “C” was born on 4 November, 1980 and “T” was born on 1 October, 1981. The applicant married their mother in 1987.
The applicant admitted 43 prior convictions from 20 previous court appearances between 1972 and March, 1988. These were, variously, for offences of dishonesty, driving offences and street offences, but they also included a convictions for armed robbery in July, 1982 and November, 1985 which were visited by imprisonment. The only convictions of a sexual connotation, indecent assault and indecent exposure, were recorded in February, 1976 and resulted in a relatively short term of imprisonment.
After hearing a plea for leniency and receiving on behalf of the applicant a letter from the Parole Board and a report of Mr Ian Joblin, Psychologist, together with other documents and three victim impact statements relating to the complainants, His Honour, on 15 June, sentenced the applicant as follows.
Count 1 - 12 months’ imprisonment
Count 2 - Three years’ imprisonment
Count 3 - Two years’ imprisonment and
Count 4 - five years’ imprisonment.
His Honour directed that four months of the sentence on count 1 and six months of each of the sentences on counts 2 and 3 be served cumulatively upon the sentence imposed on count 4 and upon each other making for a total effective sentence of six years and four months. A non-parole period of four years and…

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 D L M

Details

AGLC: R v D L M [1999] VSCA 6
Case: [1999] VSCA 6
Decision Date: 11 February 1999

CaseChat Overview and Summary

In the case of R v D L M, the defendant was convicted of multiple sexual offences involving his step-children. The matter was brought before the court to determine an appropriate sentence, considering the defendant's guilty plea shortly before the re-trial was due to commence. The primary issue before the court was whether the sentencing judge was bound to consider and not exceed the sentence imposed by the previous judge, especially since the counts were somewhat different, and whether the sentence was manifestly excessive given the favourable findings on the defendant's rehabilitation.

The court examined the principles surrounding the consistency of sentencing between different judges. It held that while there is a general expectation for consistency in sentencing, each case must be assessed on its own merits. The court considered the nature of the offences, the defendant's rehabilitation prospects, and the findings of the previous judge. The court found that the counts, although similar, had variations that warranted individual consideration. Furthermore, the court acknowledged the favourable findings on the defendant's rehabilitation, which suggested that a sentence less severe than the previous one could be justified.

In reaching its decision, the court balanced the principle of consistency in sentencing with the need to consider the unique circumstances of the case. The court concluded that the sentencing judge was not strictly bound to adhere to the previous sentence but was required to have it in mind. Considering the defendant's rehabilitation and the differences in the counts, the court determined that the sentence imposed was not manifestly excessive. The court affirmed the sentence imposed by the sentencing judge, recognising the need for individual assessment while maintaining a degree of consistency with prior judgments.

The final orders of the court affirmed the sentence imposed by the lower court, recognising the complexities involved in sentencing for sexual offences against step-children and the importance of considering individual circumstances, including rehabilitation prospects.

Orders