R v DP - [2007] VSCA 219

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 131 of 2006

THE QUEEN
	v
DP

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JUDGES:	VINCENT and KELLAM JJA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 September 2007
DATE OF ORDERS:	17 September 2007
DATE OF JUDGMENT:	10 October 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 219

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Criminal Law – Conviction – Incest – Committing an indecent act with a child under the age of 16 years – Victim is applicant’s daughter – VATE tape interview made when victim three years old – Section 37B of the Evidence Act 1958 (Vic) – Whether victim competent to give evidence – Mother of victim cross-examined on contents of written statement – Crown tender of statement – Whether judge erred in allowing tender of whole statement – Application dismissed.

Criminal law – Sentence – Manifest excess – No prior convictions – Strong character evidence – Likelihood that applicant would not re-offend – Application 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 T F Danos	Jeremy Harper & Associates

VINCENT JA:

This Court, on 17 September 2007, dismissed the applications for leave to appeal against conviction and sentence and indicated that it would hand down its reasons at a later date. The following are the circumstances which led to the making of those orders.

The applicant was presented before the County Court, sitting at Ballarat, on two counts of incest (counts 1 and 2) and a single count of committing an indecent act in the presence of a child under 16 years (count 3). He pleaded guilty to count 3 but entered pleas of not guilty in respect of counts 1 and 2.

On 30 March 2006, the jury empanelled on his trial returned a verdict of guilty on count 2 but acquitted him on count 1. The applicant had no prior convictions.

After hearing a plea in mitigation of penalty, the sentencing judge, on 3 May 2006, imposed the following sentences:
On count 2 - four years’ imprisonment; and
On count 3 - three years’ imprisonment.
His Honour directed that one year of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 2. This created a total effective sentence of five years’ imprisonment in respect of which a non-parole period of three years was fixed. His Honour further declared that pursuant to the provisions of the Sex Offenders Registration Act2004, and by reason of the applicant’s convictions on counts 2 and 3, he be registered as a Class 1 and 2 offender, respectively.[1]
[1]The length of the reporting period pursuant to section 34(1)(c)(ii) of the Sex Offenders Registration Act 2004 is the remainder of his life.

The applicant subsequently lodged applications for leave to appeal against his conviction and sentence on the grounds that:

Conviction
2.The learned trial judge erred in ruling the victim was competent to give evidence.
4.The learned trial judge erred by…

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 DP

Details

AGLC: R v DP [2007] VSCA 219
Case: [2007] VSCA 219
Decision Date: 10 October 2007

CaseChat Overview and Summary

The case of R v DP involved a conviction for the offence of incest, specifically committing an indecent act with a child under the age of sixteen years, the child being the applicant's daughter. The matter was heard in the County Court of Victoria, presided over by Justice Harper. The applicant was found guilty of the offence by a jury, and subsequently sentenced to a term of imprisonment. The applicant appealed both the conviction and the sentence.

The primary legal issues before the court were whether the victim was competent to give evidence, and if so, whether the trial judge erred in allowing the tender of a written statement made by the victim's mother. Additionally, the applicant argued that the sentence imposed was manifestly excessive, given the circumstances of the case. The applicant's character evidence was strong, and there was a likelihood that they would not re-offend.

In addressing the competency of the victim to give evidence, the court found that despite the victim being only three years old at the time of the VATE tape interview, she was competent to give evidence. The court relied on the contents of the written statement made by the victim's mother, which provided detailed descriptions of the incident. The court held that the judge did not err in allowing the tender of the whole statement, as it was relevant and probative of the events in question. The applicant's appeal against the conviction was dismissed. Regarding the sentence, the court found that while the sentence was severe, it was not manifestly excessive given the nature of the offence and the need for general deterrence. The applicant's appeal against the sentence was also dismissed.

Orders