R v DD - [2002] VSCA 112

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 49 of 2001

THE QUEEN
	v.
DD

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JUDGES:	PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 May 2002
DATE OF JUDGMENT:	2 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 112

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CRIMINAL LAW: Appeals against conviction and sentence – Allegation that applicant was convicted of offences which did not exist at the time they allegedly occurred and that the proceedings touching them were void ab initio. Appeal against conviction dismissed – R. v. Patton, Caldwell and Robinson (1998) 1 V.R. 7 applied. Appeal against sentence allowed – “Unexplained, indeed, mysterious” disparity of individual sentences.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr D.B. Maguire	Cariss & Co.

PHILLIPS, C.J.:

The applicant, who is 57 years of age, was arraigned in the County Court at Melbourne in April 2000, upon a Presentment containing 17 counts. It was agreed that count 17 was to be tried separately. The applicant pleaded not guilty to the remaining counts, all of which alleged the commission of sexual offences by him.

On 13 April, after a trial during which the applicant gave sworn evidence denying the commission of the offences, the jury convicted him on all counts. He was then arraigned on count 17 and pleaded guilty. As will later appear, he also pleaded guilty to a sole count of indecent assault on another Presentment L.02373285.2. After hearing a plea for leniency, during which the learned judge received medical reports and character references tendered by the defence, and Victim Impact Statements tendered by the Crown, the applicant was sentenced, on 14 July 2000, to a total effective sentence of “six years” imprisonment. The learned judge fixed a non-parole period of four years six months and made a declaration as to 93 days pre-trial detention.

The applicant had no prior convictions. On 28 July 2000 he lodged notice of application for leave to appeal against sentence pleading some seven grounds.

On 22 September 2000 the applicant obtained from Buchanan, J.A. leave to appeal against his sentence. His Honour noted three grounds in particular.

“1.That there is inconsistency and disparity between the period of cumulation, such as to entitle the applicant to feel aggrieved.
2.That there is inconsistency and disparity between the sentences, such as to entitle the applicant to feel aggrieved..
4.That the sentence imposed on counts 7, 12, 13, 17 and 18 are disproportionate to the offending.”

(Although the above leave was granted, I find it convenient to use the expression “applicant” throughout.)

On 13 March 2001 the applicant obtained from this Court an extension of time within which to make application for leave to appeal against the convictions sustained by him on counts 1, 2, 3 and 6. He subsequently did make such application and pleaded the following grounds.

“1.At all relevant times Section 369 of the Crimes Act 1958 provided as follows:
‘Every Presentment shall be…

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 DD

Details

AGLC: R v DD [2002] VSCA 112
Case: [2002] VSCA 112
Decision Date: 2 August 2002

CaseChat Overview and Summary

The case before the court involved an appeal against both conviction and sentence by a defendant identified only as DD. The dispute centred around DD's conviction for offences which the appellant argued did not exist at the time they allegedly occurred. This contention led to an assertion that the proceedings were void from the outset. The appeal was heard in the relevant appellate court of Australia.

The legal issues before the court were twofold: whether the conviction was valid given the alleged non-existence of the offences at the time, and whether the sentence imposed was just and appropriate. The first issue required an examination of the statutes and legal principles governing the existence of offences at the time of commission. The second issue involved an assessment of the proportionality and rationale behind the sentences given, in light of the principles of sentencing equity.

The court dismissed the appeal against conviction, following the precedent set by the case of R. v. Patton, Caldwell and Robinson (1998) 1 V.R. 7. This decision was based on the principle that the existence of an offence at the time of commission is determined by the law as it stood at the time the offence was committed, and not by subsequent legal developments. However, the court did allow the appeal against the sentence, finding that the disparity in sentences was unexplained and mysterious, lacking any justifiable basis. This led to the conclusion that the sentences were not in accordance with the principles of equity and justice.

The final orders of the court involved the dismissal of the appeal against conviction but allowed the appeal against the sentence. This decision underscores the importance of both the validity of convictions and the fairness of sentencing in the criminal justice system.

Orders