R v DM - [2007] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 233 of 2006

THE QUEEN
	v.
DM

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JUDGES:	BUCHANAN and NETTLE JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2007
DATE OF JUDGMENT:	1 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 155

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CRIMINAL LAW – Conviction - Incest, indecent act with a child under 16 – Guilty plea -– Whether Applicant’s conduct could amount to incest at law given depositions – Application for leave dismissed.

CRIMINAL LAW – Sentence – Whether erroneous sentence on “representative” counts – Manifest excess and totality – Application for leave dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr M J Croucher	Mr R Melasecca

BUCHANAN JA:

I will ask Whelan AJA to deliver the first judgment.

WHELAN AJA:

By a presentment filed on 16 November 2005, the applicant was charged with 13 counts of committing an indecent act with a child under 16 and four counts of incest. The applicant pleaded guilty to all counts and was sentenced in the County Court on 11 July 2006. The applicant now seeks leave to appeal against conviction on one of the counts to which he pleaded guilty (count 8), and also seeks leave to appeal against his sentence.

I will not set out the circumstances of the various offences in any detail. The sentencing judge outlined the facts relevant to the various offences and, save in relation to count 8, it is not suggested that the judge's outline, which closely followed a document prepared by the Crown entitled "Summary of Prosecution Opening" which was tendered as Exhibit B on the plea, was inaccurate.

The offences began in 1995. The first victim was a girl who was at the time the applicant's neighbour and who was then in Year 7. A friend of hers, who was also in Year 7, was the second victim. Counts 1 to 5, which are all offences of committing an indecent act with a child under the age of 16, concern this period of offending.

The applicant commenced a de facto relationship with the mother of the other two victims of the various offences (who I will call X and Y) in 1997. Two counts of committing an indecent act with a child under 16, between 6 August 1997 and 5 August 1998 (counts 6 and 7), concerned Y. Y at that time was a seven-year-old girl in Grade 3.

The first incest count is count 8. The relevant conduct occurred in 1999, and Y, who was then eight years old, was the victim. I will return to the circumstances of this count. This is the count in relation to which it is sought to appeal the conviction, notwithstanding the plea of guilty.

Two further offences of committing an indecent act with a child under 16 (counts 9 and 10) occurred in 1999, and Y was again the victim. Between 6 August 1999 and…

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 DM

Details

AGLC: R v DM [2007] VSCA 155
Case: [2007] VSCA 155
Decision Date: 1 August 2007

CaseChat Overview and Summary

In the case of R v DM, the respondent appealed against his conviction and sentence. The matter was heard in the High Court of Australia. The respondent was convicted of committing incest and an indecent act with a child under 16. The respondent entered a guilty plea and sought to appeal against his conviction and sentence. The central legal issues that the court had to determine were whether the respondent's conduct could amount to incest at law and whether the sentence imposed on him was manifestly excessive.

The court found that the respondent's conduct could indeed amount to incest at law. The court considered the depositions and the relevant statutory provisions, including the definition of incest under the Crimes Act. The court held that the respondent's conduct fell within the definition of incest and that the conviction was valid. Regarding the sentence, the court found that the sentence imposed on the respondent was not manifestly excessive. The court considered the totality of the sentence and the principles of sentencing and found that the sentence was proportionate to the gravity of the crimes committed. The court held that the sentence was not manifestly excessive and dismissed the appeal against sentence. The court also dismissed the appeal against conviction.

Orders