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R v Dunne

R v Dunne

Case [2003] VSCA 150 24 September 2003

Sentencing

Criminal Liability

Childhood Sexual Abuse

Rehabilitation

General Deterrence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 198 of 2002

THE QUEEN
	v.
JAMES PAUL DUNNE

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JUDGES:	BATT and VINCENT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2003
DATE OF JUDGMENT:	24 September 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 150

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CRIMINAL LAW – Sentencing – One count of sexual penetration and 30 of indecent assault on boy of 11 to 14 by teacher at religious school over three years – Many other, uncharged, acts – Whether judge had regard to them impermissibly – Whether a finding as to their number not made to requisite standard – Weight to be given to rehabilitation and general deterrence – Childhood sexual abuse of offender, stress and opprobrium – Totality – 7 years 2 months’ imprisonment with non-parole period of 4 years and 2 months not manifestly excessive – Sentencing Act 1991, s.6D(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. L.C. Carter	T.J. Mulvany & Co.
For the Respondent	Mr. J.D. McArdle Q.C. with Ms R.J. Orr	Ms K. Robertson, Solicitor for Public Prosecutions

BATT, J.A.:

On 26 July 2002 the appellant, who was born on 10 July 1956 and was aged between 28 and 31 years at the time of the offending about to be mentioned and 46 years at the date of sentence, pleaded guilty on arraignment in the County Court at Melbourne to 30 counts of indecent assault contrary to s.44(1) of the Crimes Act 1958 as in force during the period of offending and one count of taking part in an act of sexual penetration (being the introduction of the victim’s penis into the appellant’s mouth) with a person above the age of ten years but under the age of sixteen years, contrary to s.48(1) of that Act as in force at the time of the offence. The offending was alleged to have occurred over a period from 1 December 1984 to 31 December 1987. In each case the victim, a male born on 9 April 1973 (and so aged between 11 and 14 during the offending), was a pupil at schools at which the appellant was a teacher. The appellant had no prior convictions. The maximum penalty for indecent assault during the period of offending was imprisonment for five years and that for the sexual penetration offence was imprisonment for ten years.

A plea in mitigation of penalty commenced on 26 July and concluded on 2 August 2002. The prosecutor tendered a very useful chronology and a powerful victim impact statement. Counsel for the respondent called Dr. James Ogloff, Professor of Clinical Forensic Psychology at Monash University and Director of Psychological Services for the Victorian Institute of Forensic Medical Health, who had interviewed the appellant clinically, and tendered his report. Counsel also called three character witnesses and tendered a bundle of testimonial references.

On 7 August 2002 the County Court judge sentenced the appellant to various terms of imprisonment, ranging from one month to three years (the latter being imposed…

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 Dunne

Details

AGLC: R v Dunne [2003] VSCA 150
Case: [2003] VSCA 150
Decision Date: 24 September 2003

CaseChat Overview and Summary

The defendant, Dunne, appealed against his conviction and sentence for sexual penetration and indecent assault of a minor. The crimes occurred over a three-year period while Dunne was a teacher at a religious school. The victim was a boy aged between 11 and 14 years old. The appeal focused on whether the sentencing judge had appropriately considered other uncharged acts of a similar nature and whether the totality principle had been applied correctly. The Court of Appeal was required to determine whether the sentence was manifestly excessive and if the sentencing judge had properly weighed the relevant factors.

The Court of Appeal examined whether the sentencing judge had appropriately considered other uncharged acts committed by Dunne. It found that the judge had indeed considered these acts, but did so within the bounds of permissible judicial consideration. The court concluded that the number of these acts did not need to be found to the criminal standard. Additionally, the court assessed the weight to be given to rehabilitation and general deterrence, taking into account Dunne's childhood sexual abuse, stress, and the opprobrium he faced. The totality principle was applied, and the court found that the sentence of seven years and two months with a non-parole period of four years and two months was not manifestly excessive.

Dunne's appeal was dismissed as the sentence was deemed appropriate under the circumstances. The Court of Appeal found that the sentencing judge had correctly balanced the various factors and had not erred in his application of the sentencing principles. The totality principle, alongside considerations of rehabilitation and general deterrence, supported the sentence imposed. The court held that the sentence reflected the seriousness of the offences and the need to protect the community.

No further orders were made by the court.

Orders