R v D W B; Director of Public Prosecutions v D W B (No 2)

[2008] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 395 of 2007
v
DWB (No 2)
THE DIRECTOR OF PUBLIC PROSECUTIONS	No 425 of 2007
v
DWB

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JUDGES:	VINCENT and WEINBERG JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2008
DATE OF JUDGMENT:	12 November 2008
DATE OF FURTHER HEARING:	8 December 2008
DATE OF FURTHER JUDGMENT	8 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 275

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Criminal Law – Sexual abuse of two daughters – 11 convictions quashed on conviction appeal with eight convictions remaining – Crown appeal against sentences on remaining convictions – Principle of double jeopardy – Discretionary considerations – Appeal dismissed – New orders made for cumulation of sentences to reflect gravity of offending pursuant to s 569(1) of the Crimes Act – Court to pass such sentence as it thinks proper – Original sentence of five years’ imprisonment with three-year non-parole period reimposed

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant/ Respondent	Mr C B Boyce	Galbally & O’Bryan

VINCENT JA
WEINBERG JA
MANDIE AJA:

1. On 12 November of this year, the Court allowed, in part, an appeal by a person who will be identified as DWB against conviction.[1]  The appellant was originally convicted on 19 counts relating to the sexual abuse of his two daughters.  A number of the counts (2 to 4 and 8 to 15) were particularised in a way that was unsatisfactory in law and the convictions on those 11 counts were quashed.  Acquittals were entered in relation to them.  That left the convictions on counts 5 to 7 and 17 to 21 standing.  There is no need to set out the circumstances surrounding the commission of this second group of offences, as they appear in the earlier judgment of the Court.

   [1]R v DWB [2008] VSCA 223.

1. The appellant now stands convicted of eight counts only, and the sentences imposed on those counts were as follows:

Count 5 – 6 months’ imprisonment

Count 6 – 8 months’ imprisonment

Count 7 – 6 months’ imprisonment

Count 17 – 6 months’ imprisonment

Count 18 – 42 months’ imprisonment

Count 19 - 8 months’ imprisonment

Count 20 – 6 months’ imprisonment

Count 21 – 6 months’ imprisonment.

1. Counts 5 to 7 and 19 to 21 were counts of indecent assault.  Count 17 was a count of gross indecency with a girl under the age of 16 years and count 18 was a count of incest. 

1. The sentencing judge treated the sentence of three years and six months imposed on count 18 as the base sentence.  By reason of various orders as to cumulation, he came to a final figure of five years and fixed a non-parole period of three years.  The sentences that he used for the purpose of cumulation were those that arose out of the counts which have now been quashed by this Court.  It follows that, if nothing further were done, the appellant would be left to serve a head sentence of three years and six months with a non-parole period of three years. 

1. Section 569(1) of the Crimes Act1958 is directly applicable in this situation.  That section relevantly provides as follows:

If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the indictment … has been properly convicted on some other count or part of the indictment … the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment … on which the Court considers that the appellant has been properly convicted. [2]

[2]Ryan v The Queen (1982) 149 CLR 1. In that case, the High Court held that s 569(1) did not enable the Full Court of the Supreme Court of Victoria to increase sentences imposed on particular counts that were not the subject of an appeal against conviction. In the present case, all counts were the subject of appeal, and accordingly there would be no constraint upon an increase in penalty for any individual count were that considered to be appropriate.

1. The issue before this Court is complicated by the fact that there is also an appeal by the Director of Public Prosecutions against the individual sentences imposed below, as well as the total effective sentence and non-parole period.  That appeal is being pursued, notwithstanding the fact that 11 of the original 19 counts have been quashed.  The Director submits that the individual sentences are all manifestly inadequate, and, most particularly, the sentence imposed on count 18. 

1. The principles that govern Crown appeals are not in doubt and they need not be restated here.[3]  There is much force in the submissions of counsel for the Crown that the individual sentences imposed upon DWB were manifestly inadequate in the circumstances.  However, when one has regard to such factors as the respondent's age (64 years at the time that he was sentenced), his prior good character, his state of health, the fact that these offences occurred more than 25 years ago and he has led an apparently blameless life since then, the Court is of the view that, in the exercise of its discretion, and by reference to the principles of double jeopardy, we would not increase any of the individual sentences, and, accordingly, we would dismiss the Crown appeal. 

   [3]R v Clarke [1996] 2 VR 520 and Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R 538, [10]-[11].

1. On the other hand, it would be quite wrong, in our view, to reduce the head sentence that the appellant is currently serving.  The five-year term imposed in relation to the 19 counts on which he was originally convicted was very lenient indeed.  Had the convictions on those counts all stood, it is almost certain, if not certain, that the Director's appeal would have succeeded. 

1. The conduct in which the appellant was alleged to have engaged involved two victims, it was manipulative in the extreme, and resulted in serious personal damage to them. However, this Court is now dealing with only a limited number of those counts and is called upon, pursuant to s 569(1), either to affirm the sentence passed below or ‘pass such sentence in substitution therefor as it thinks proper and as may be warranted in law’.

1. In our view, the individual sentences passed should stand.  However, there should be new orders made for cumulation to reflect the ongoing and repetitive nature of the offending, the two victims, as well as the gravity of his overall criminality. 

1. The orders of the Court are, accordingly:

   The appeal by the Director of Public Prosecutions is dismissed.
   The appellant DWB is re-sentenced pursuant to s 569(1) of the Crimes Act.
   He is sentenced as a serious sexual offender on all counts save counts 5 and 6. 
   Each of the sentences imposed in the court below is set aside and reimposed. 
   The sentences on counts 17 and 18 are to be served concurrently.
   It is directed that three months of each of the sentences imposed on each of counts 5, 6, 7, 19, 20 and 21 be served cumulatively upon each other and upon the sentence imposed on count 18.
   The sentences are otherwise to be served concurrently with that imposed on count 18.[4]
   This makes for a total effective sentence of five years, and the Court fixes a non-parole period of three years.
   It is declared that the period of 442 days that the appellant has undergone be reckoned as having been served under the sentence hereby imposed and it is directed that this declaration and its details be entered in the records of the Court.
   The ancillary orders made in relation to a forensic sample and registration under the Sex Offenders Registration Act2004 are confirmed.
   In respect of the Director's appeal, the Court grants to the respondent an indemnity certificate pursuant to s 15 of the Appeal Costs Act 1998.

   [4]This curious formulation arises from the operation of the provisions under the Sentencing Act1991 with respect to serious sexual offenders: see s 6E.

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