R v DH

Case [2003] VSCA 220 19 December 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.282 of 2002

THE QUEEN
	v.
D.H.

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JUDGES:	WINNEKE, P., PHILLIPS and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2003
DATE OF JUDGMENT:	19 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 220

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Criminal law – Sentencing – Sexual offending during 8 years against three step-daughters – Victims aged between 10 and 19 – Thirteen counts of incest and rape, some representative – Six counts in one episode recorded by the offender on video tape – Sentences 3 to 5 years longer for video-taped offences – Tape recording in evidence – Whether tape recording caused imbalance in sentencing – Appeal allowed and offender re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin with Mr. B.L. Sonnet	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. G.J. Lyon	Victoria Legal Aid

WINNEKE, P.:

In my opinion, this appeal should be dismissed.

Mr. Lyons, who appeared for the appellant in this Court, contended that the sentencing discretion had been re-opened because of errors which had been made by the sentencing judge in respect of the applicable maxima on the charges of attempted incest and incest in counts 1, 2, 4 and 5 – all of which counts alleged offences prior to September 1997 when the maximum penalty for incest was elevated by the legislature from 20 years to 25 years. At the time when the offences charged in the counts referred to were committed, the maximum penalty for incest was in fact 20 years, and for attempted incest 15 years. The penalties which his Honour imposed of four years, six years, four years and six years respectively do not appear to me to be penalties imposed by reference to the maximum available, and in any event have not produced any material error because – aside from the cumulation of one year of the sentence on count 5 – all penalties have been subsumed by penalties imposed on other counts. The other specific error, which was alleged to have been made by the sentencing judge, was in the order for cumulation. Once again, in my view, that error was nothing more than an immaterial “slip-up” by the sentencing judge whose reasons disclose that at all times it was his intention to produce a total effective sentence on Presentment PO2470110 of 17 years. Neither error is one which, in my view, re-opens the exercise of his Honour’s discretion.

The major argument, eloquently presented by Mr. Lyons, was in respect of the ground which alleged manifest excess. The essence of the ground was that the total effective sentence of 18 years and the non-parole period fixed of 15 years, were manifestly excessive, and that – in particular – the sentences imposed on counts 6 to 11 inclusive of Presentment PO2470110, being the offences of rape of the complainant K, (penile rapes orally, anally and vaginally and rapes anally and vaginally by means of a cucumber), were themselves excessive. In particular,…

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.

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Details

AGLC: R v DH [2003] VSCA 220
Case: [2003] VSCA 220
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the case of R v DH, the appellant was convicted of multiple counts of sexual offending against three of his step-daughters, aged between 10 and 19, over an 8-year period. The crimes included incest and rape, with six of the offences occurring during a single episode which the offender recorded on video tape. The trial judge imposed sentences that were three to five years longer for the offences recorded on video. The appellant appealed the severity of the sentences, arguing that the use of the video recording in evidence led to an imbalance in the sentencing. The Court of Appeal considered the appropriate weight to be given to the video recording in determining the sentence and whether the sentences imposed were excessive.

The court was required to determine whether the trial judge had erred in giving undue weight to the video recording in sentencing the offender and whether the sentences imposed were excessive. The appeal hinged on whether the video recording of the offending had unduly influenced the severity of the sentences, potentially leading to an imbalance. The court had to balance the gravity of the offences against the principle that each offence must be considered on its own merits without undue influence from external factors such as the video recording.

The Court of Appeal found that the trial judge had indeed given undue weight to the video recording in determining the sentences, which had resulted in an imbalance. The court emphasised that while the video recording was relevant, it should not have disproportionately influenced the sentencing. The appeal was allowed, and the offender was re-sentenced. The Court of Appeal reduced the sentences, taking into account the appropriate weight of the video recording and the overall gravity of the offences. The new sentences were deemed to be proportionate and reflected the principles of sentencing for such serious offences.

The court ordered that the appellant be re-sentenced, with the new sentences reflecting a more balanced approach. The sentences were reduced to better align with the principles of sentencing for the specific offences committed. The Court of Appeal's decision underscored the importance of ensuring that each offence is considered on its own merits and that external factors, such as video recordings, do not unduly influence the outcome of the sentencing process.

Orders