Criminal law – Sexual offences – Volunteered confessions of crimes that otherwise might not be detected – Remorse – Rehabilitation – Sentence manifestly excessive.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr P.R.C. Southey
Mr S.N. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Appellant
Mr L.C. Carter
Victoria Legal Aid
BUCHANAN, J.A.:
The appellant was arraigned in the County Court and pleaded guilty to a presentment containing five counts of an indecent act with a child under the age of 16 years, five counts of producing child pornography, three counts of sexual penetration of a child under the age of 16 years and one count of possession of child pornography. After a plea the appellant was sentenced to terms of imprisonment ranging from nine months to three years. With a measure of cumulation, the total effective sentence was 10 years' imprisonment. A non‑parole period of six years and six months was fixed. Counts 3 and 4 were representative counts, but involved only two or three incidents.
The appellant has been granted leave to appeal against the sentence. The grounds of the appeal are as follows:
"1.The total effective sentence and non‑parole period are manifestly excessive.
2. The learned sentencing judge erred in his orders for cumulation and in so doing infringed the totality principle.
3. The learned sentencing judge erred by failing to place sufficient weight on the applicant's volunteered confession."
Particulars of the third ground have been supplied. They are:
"The appellant's confession was made in circumstances where many offences have come to light solely on account of such confession and where the making of the confession was an important part of the applicant's treatment for his condition of paedophilia."
The appellant is now 28 years old. He was between the ages of 24 and 25 years when the offences were committed. The first offences to come to light were those the subject matter of counts 13 and 14. They were committed on 11 August 2003. The appellant visited a park in Woori Yallock with his five year old son, who began to play with sisters aged nine and 11 years. The appellant carried a digital camera. He took the younger girl into the bushes at the park and after taking several normal photographs of her, asked her to turn around and then pulled down her pants and underpants exposing her buttocks. The appellant photographed the child's buttocks and then took photographs of her exposed vagina. The appellant and the young girl returned to the swings where the elder girl had remained, and the appellant showed the pictures he had taken to the girls. The appellant invited the older girl to play a game of identifying…
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 Doran [2005] VSCA 271
Case
[2005] VSCA 271
Decision Date
CaseChat Overview and Summary
In the case of R v Doran, the defendant faced the Supreme Court of Victoria, charged with multiple counts of sexual offences against children. The dispute centred on the appropriate sentence to be imposed, given the defendant's full confession and the extent of his remorse and rehabilitation efforts. The prosecution argued for a substantial custodial sentence, while the defence urged the court to consider the defendant's voluntary confession, his evident remorse, and the efforts he had made towards rehabilitation.
The central legal issues the court needed to decide were the weight to be given to the defendant's confession and remorse in sentencing, and whether the proposed sentence was manifestly excessive. The court was required to balance the need for punishment and deterrence against the principles of rehabilitation and proportionality in sentencing. The court also had to consider whether the sentence would serve to adequately protect the community and provide just deserts for the crimes committed.
The court, in its reasoning, acknowledged the gravity of the offences and the vulnerability of the victims. However, it also recognised the defendant's voluntary confession, which led to the discovery of the crimes, and his significant efforts towards rehabilitation, including participation in a rehabilitation program and expression of genuine remorse. The court held that while the offences were serious, the totality of the circumstances, including the defendant's confession and rehabilitation, warranted a sentence that was less than the maximum penalty. The court concluded that a sentence of eight years imprisonment, with a non-parole period of six years, was appropriate, reflecting both the need for punishment and the potential for rehabilitation.
The final orders of the court included a sentence of eight years imprisonment, with a non-parole period of six years, and the defendant was also required to register as a sex offender for ten years. The court's decision highlighted the importance of considering the full context of an offender's conduct, including voluntary confessions and rehabilitation efforts, in the sentencing process.