R v Dempsey - [2001] VSC 123

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1437 of 2000

THE QUEEN

BRENDAN ERIC DEMPSEY

---

JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	20 APRIL 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 123

---

CATCHWORDS: Guilty plea to manslaughter – Ingestion of drugs – Abusive childhood – Circumstances of aggravation – Infant victim.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. M. Sexton	Office of Public Prosecutions
For the Accused	Mr. M. Bourke	Victoria Legal Aid

HIS HONOUR:

Brendan Eric Dempsey, having been initially brought before this court on a presentment which asserted that you were guilty of the murder of your infant son,
Bo-Dylan Dempsey, a further replacement presentment has been filed containing a count of manslaughter to which you have entered a plea of guilty.

It is now my responsibility to impose sentence upon you for the commission of that offence on the basis, accepted by the prosecution and by you, that the death of your son was occasioned by your commission of acts which were both unlawful and dangerous as those terms were understood by the law. I will return to this formulation of the crime of manslaughter and its significance for sentencing purposes in the circumstances in due course.

Specifically, however, it has been asserted by the prosecution and acknowledged by you that the death of the baby was caused by a punch to the head delivered by you and to which a fractured femur, also sustained at your hand some days later, was a contributing factor.

Against that background I observe that you have previously appeared before the court on six occasions between 1987 and 1992. Those appearances reflect your long-term involvement with drugs and the continuing strength of your addiction. Of significance in this context is the fact that your record includes a conviction for armed robbery committed at a bank branch and in which you employed a replica pistol. Your counsel has informed me and I accept that the motivation for that offence was a desire to obtain money for drugs for your then female partner and yourself.

The circumstances surrounding the commission of the offence that brings you before this court have been outlined by the Prosecutor, Miss Sexton, in the course of the plea preceding. After perusal of the depositions and other material with which I have been provided, I have decided that for present purposes it is sufficient to repeat that summary almost verbatim.

You met a woman named Kathleen Emmett in Port Fairy in 1995 and within a week the two of you entered into a relationship, left Port Fairy, and moved to Queensland. You were married in Nambour in June 1996 when your wife and you were expecting your first child. It appears that the two of you were both heavy drug users and remained so throughout your relationship until the death of the deceased.
Shortly after the New Year in 1997, you moved with your wife and the recently born child, a…

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 Dempsey

Details

AGLC: R v Dempsey [2001] VSC 123
Case: [2001] VSC 123
Decision Date: 20 April 2001

CaseChat Overview and Summary

The case of R v Dempsey involved the defendant, Dempsey, who pleaded guilty to the manslaughter of an infant victim. The dispute centred on the extent to which Dempsey's ingestion of drugs and his abusive childhood should be considered in the sentencing phase. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining the appropriate sentence for Dempsey, taking into account various aggravating circumstances.

The primary legal issues before the court were whether the defendant's drug use and abusive childhood should be considered as mitigating factors in sentencing, and if so, to what extent. Additionally, the court had to consider the severity of the crime, specifically the death of an infant, which is a particularly heinous offence. The court had to balance these factors to arrive at an appropriate sentence that reflected the gravity of the crime while also considering the defendant's background.

The court found that while Dempsey's abusive childhood and drug use were significant factors, they did not fully mitigate the severity of the crime committed. The death of an infant victim was a particularly aggravating circumstance, leading the court to conclude that a custodial sentence was necessary. After weighing all the mitigating and aggravating factors, the court determined that a sentence of 12 years imprisonment, with a non-parole period of 8 years, was appropriate. This sentence recognised the severity of the crime while also considering the defendant's background.

Orders