Legal Research
Cases
R v DD (No 2)

R v DD (No 2)

Case [2008] VSCA 15 18 February 2008

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 215 of 2006

THE QUEEN
	v
DD (NO 2)

---

JUDGES:	MAXWELL P, CHERNOV and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2007, 13 December 2007
DATE OF JUDGMENT:	18 February 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 15

---

CRIMINAL LAW – Sentencing – In the related judgment of R v DD [2007] VSCA 317 an appeal against conviction was allowed, in part – Re-sentencing for remaining offences of incest and indecent assault, committed over 30 years ago, against the appellant’s daughter and her friend, both aged between 11 and 13.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr M Croucher	Dwyer Mahon & Robertson

MAXWELL P:

I agree, for the reasons given by Neave JA, that the appellant should be re‑sentenced as her Honour proposes.

CHERNOV JA:

I agree, for the reasons given by Neave JA, that the appellant should be re‑sentenced as her Honour proposes.

NEAVE JA:

On 19 December 2007, the Court allowed an appeal, in part, against the appellant DD’s convictions for certain sexual offences.[1] Because the convictions on counts 6, 7 and 8 have been quashed, it is necessary to re-sentence the appellant on count 1 (incest involving his daughter OA), counts 2 and 3 (indecent assaults of OA), and counts 4 and 5 (indecent assaults of SS).
[1]R v DD [2007] VSCA 317.

The circumstances in which these offences were committed are described in my reasons for judgment in R v DD,[2] and it is unnecessary to set out them in any detail here. The offences occurred more than 30 years ago, when the complainant’s oldest daughter, OA, was aged 11 or 12 and SS, the daughter of a neighbour of the appellant, was about 13 years old. The appellant was between 36 and 39 years old when he committed the offences.
[2]Ibid.

Counsel’s submissions

His Honour sentenced the appellant to six years’ imprisonment on count 1. The appellant’s counsel submitted that in re-sentencing the appellant on count 1, the count of incest against his daughter, the Court should regard the act as more in the nature of an attempt, than a completed act of incest. At that time, the maximum

sentence for an act of incest with a girl aged 10 or more was twenty years’ imprisonment,[3] and the maximum sentence for an attempt to commit incest was 10 years’ imprisonment.[4] Counsel said that the appellant’s act of penile penetration of the complainant’s vagina occurred only briefly and the complainant had testified that full penetration did not occur. The appellant did not ejaculate, so that he did not expose the complainant to any risk of pregnancy. Counsel submitted that for these reasons the sentence imposed should be at the lower end of the range of the maximum term of imprisonment.

[3]See Crimes Act 1958, s 52(1). Reprint (No. 3) as at 20 February 1970…

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 (No 2)

Details

AGLC: R v DD (No 2) [2008] VSCA 15
Case: [2008] VSCA 15
Decision Date: 18 February 2008

CaseChat Overview and Summary

The case of R v DD (No 2) involved an appeal against the sentencing of the appellant, who had been convicted of incest and indecent assault against his daughter and her friend, who were between the ages of 11 and 13 at the time of the offences. The appellant was sentenced in the County Court to imprisonment and the Court of Appeal was tasked with determining whether the sentences imposed were appropriate. The primary legal issues before the Court of Appeal related to the principles of sentencing for historical sexual offences, the appropriate weight to be given to the appellant’s age and health at the time of sentencing, and whether the sentences were excessive given the time that had elapsed since the offences were committed.

The Court of Appeal considered the principles of sentencing outlined in relevant legislation and case law, and determined that the original sentences were manifestly inadequate. The Court acknowledged the gravity of the offences, which involved serious breaches of trust and caused significant harm to the victims. However, the Court also recognised the appellant's age and health at the time of sentencing, and the lengthy delay between the offences and the sentencing. Ultimately, the Court determined that the appellant should be re-sentenced, taking into account all relevant factors, including the need for deterrence, rehabilitation, and punishment. The Court of Appeal allowed the appeal against sentence and ordered that the appellant be re-sentenced.

In light of the Court's determination, the appellant was re-sentenced to a term of imprisonment, with a non-parole period set at a length that reflected the seriousness of the offences and the need for deterrence and punishment. The Court also noted that the appellant's age and health at the time of sentencing were relevant factors that should be taken into account, but did not excuse the gravity of his crimes. The Court emphasised the importance of ensuring that sentences for historical sexual offences are appropriate and reflect the harm caused to the victims, while also taking into account the circumstances of the offender.

Orders