R v DCP - [2006] VSCA 2

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 64 of 2005

THE QUEEN
	v.
DCP

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JUDGES:	CALLAWAY, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 January 2006
DATE OF JUDGMENT:	19 January 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 2	1^st Revision 9 June 2006

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Criminal law – Sentencing – Sexual offences – Indecent acts and acts of sexual penetration – Child under 16 years of age and child aged 16 years of age – Child under care, supervision or authority of appellant school teacher – Possession and transmission of child pornography – General deterrence and denunciation – Double punishment – Total effective sentence of seven years imprisonment with five years non-parole period not manifestly excessive – Crimes Act 1958, ss. 45, 47-49, 70 – Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, s.57A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston, S.C.	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C. with Mr M.J. Croucher	Galbally Rolfe

CALLAWAY, J.A.:

I invite Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.:

On 12 November 2004, the appellant, who was then aged 45 years, pleaded guilty in the County Court at Melbourne to a presentment containing 10 counts, the first eight of which essentially alleged that, at various times between November 2002 and May 2003, he engaged in unlawful sexual conduct towards two girls who were students of the school at which he was a teacher. At the time of the offending one of the girls ("X") was aged 16 years and the other ("Y"), 15 years. It was common ground that at all relevant times the girls were under the appellant's care, supervision or authority for the purposes of the Crimes Act 1958. More specifically the appellant pleaded guilty to:

(a)one representative count (count 1) of committing an indecent act with or in the presence of X, contrary to s.49(1) of the Crimes Act which prescribes a maximum custodial penalty of five years imprisonment;

(b)three representative counts (counts 2, 3 and 4) of sexual penetration of X, contrary to s.48(1) of the Crimes Act which prescribes a maximum custodial penalty of 10 years imprisonment;

(c)three representative counts (counts 5,6 and 7) of sexual penetration of Y, contrary to s.45(1) of the Crimes Act which relevantly prescribes a maximum custodial penalty of 15 years imprisonment;

(d)one count (count 8) of committing an indecent act with or in the presence of Y, contrary to s.47(1) of the Crimes Act which prescribes a maximum custodial penalty of 10 years imprisonment;

(e)one count (count 9) of transmitting child pornography on the internet between 1 December 2002 and 20 May 2003 contrary to s.57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 which prescribes a maximum custodial penalty of 10 years imprisonment; and

(f)one count (count 10) of possessing child pornography contrary to s.70(1) of the Crimes Act which prescribes a maximum custodial penalty of five years imprisonment.

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 DCP

Details

AGLC: R v D C P [2006] VSCA 2
Case: [2006] VSCA 2
Decision Date: 19 January 2006

CaseChat Overview and Summary

The case of R v DCP involved the appellant, a teacher at a school, who was found guilty of multiple offences related to the possession and transmission of child pornography, as well as indecent acts and acts of sexual penetration involving children under the age of 16 and 16 years of age, respectively. The appellant was also found to have committed these acts while the children were under his care, supervision, or authority. The case was heard in the Court of Appeal, where the appellant challenged the severity of his sentence.

The primary legal issues before the court were whether the total effective sentence of seven years imprisonment, with a non-parole period of five years, was manifestly excessive and whether the imposition of multiple punishments for the same conduct constituted a double punishment. The court also needed to consider the principles of general deterrence and denunciation in the sentencing process.

The court held that the total effective sentence was not manifestly excessive, taking into account the seriousness of the crimes and the need to provide general deterrence and denunciation. The court also found that the imposition of multiple punishments for the same conduct did not constitute a double punishment, as each offence carried its own distinct punishment. In reaching its decision, the court emphasised the importance of recognising the appellant's position of trust and authority as a teacher and the significant breach of that trust by engaging in such heinous acts against vulnerable children. The court ultimately concluded that the sentence imposed was appropriate and did not constitute a manifestly excessive punishment.

The court did not make any further orders beyond affirming the sentence imposed by the lower court.

Orders