R v DW - [2006] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 293 of 2005

THE QUEEN

D.W.

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JUDGES:	NETTLE, NEAVE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 September 2006
DATE OF JUDGMENT:	13 September 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 196	1^st Revision 26 September 2006

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Criminal law – Sentencing – Plea of guilty – Sexual offending with a child under 16 years of age – Victim grand-daughter of respondent – Whether sentence of four years with a non-parole period of three years manifestly excessive – Whether judge gave sufficient weight to deteriorating health and expressions of remorse – Appeal upheld – Re-sentenced to three and a half years imprisonment with a non-parole period of two and a half years – Registered as a serious sexual offender pursuant to Sex Offenders Registration Act 2004.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Ms A. Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr S. Gillespie-Jones	Paul Vale Criminal Law

NETTLE, J.A. for the Court (NETTLE, NEAVE and REDLICH, JJ.A.):

On 23 September 2005, the appellant pleaded guilty before the County Court at Melbourne to one count of attempted incest (count 2) and two counts of an indecent act with a child under the age of 16 years (counts 1 and 3). After hearing a plea in mitigation of penalty, the judge sentenced the appellant on count 1 to imprisonment for a term of 18 months, on count 2 to imprisonment for a term of two-and-a-half years and on count 3 to imprisonment for a term of two years. The judge ordered that six months of the sentence imposed on count 1 and one year of the sentence imposed on count 3 be served cumulatively on the sentence imposed on count 2 and on each other, thus making for a total effective sentence of four years' imprisonment, and the judge ordered that the appellant serve not less than three years' imprisonment before being eligible for parole.

The appellant now appeals against the sentence on grounds that the judge is said to have erred by sentencing the appellant on count 2 as a serious sexual offender; by sentencing the appellant on an erroneous factual basis, and thus for an offence not charged and disclosing greater criminality than that for which the appellant had pleaded guilty; by finding that the victim's cross-examination at the committal added to her injury and thereby aggravated the appellant's offending; and by making orders for cumulation which it is said are crushing and otherwise manifestly excessive.

The facts of the matter may be stated briefly. The offences the subject of counts 1 and 2 were committed in 2000 when the appellant was aged 71 years. His victim was his granddaughter, who was then aged only six or seven years. The appellant was staying overnight at the house of his son, sleeping in the study. In the morning the little girl went into the study in her pyjamas to give the appellant a…

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 DW

Details

AGLC: R v DW [2006] VSCA 196
Case: [2006] VSCA 196
Decision Date: 13 September 2006

CaseChat Overview and Summary

The appellant, DW, was convicted of sexual offences involving his grand-daughter, a child under the age of 16, and subsequently pleaded guilty to the charges. The case was heard in the appellate court where DW appealed against his sentence, arguing that the original sentence of four years with a non-parole period of three years was manifestly excessive. The appeal centred on whether the sentencing judge adequately considered the appellant's deteriorating health and expressions of remorse. The court was required to determine if the sentence imposed was appropriate in the circumstances and if it had appropriately balanced the various factors relevant to sentencing.

The legal issues before the court included whether the sentence was manifestly excessive, whether the judge appropriately considered the appellant's health and remorse, and whether the sentence adequately reflected the principles of sentencing for sexual offences involving a family member. The court examined the sentencing remarks to ascertain whether the judge had adequately weighed these factors and determined whether the sentence was just in all the circumstances. The appeal hinged on whether the original sentence was disproportionate when compared to similar cases and whether the judge had erred in not giving sufficient weight to the appellant’s health and expressions of remorse.

In reaching its decision, the court found that the original sentence was indeed excessive given the specific circumstances of the case, including the appellant's deteriorating health and his expressions of remorse. The court noted that the sentencing judge had not adequately considered these mitigating factors and, as such, the sentence imposed was not commensurate with the principles of sentencing for such offences. The appellate court re-sentenced the appellant to three and a half years imprisonment with a non-parole period of two and a half years, recognising the need to balance the seriousness of the offence with the appellant's personal circumstances. The appellant was also required to be registered as a serious sexual offender under the Sex Offenders Registration Act 2004.

The final orders of the court were that the original sentence was quashed, and the appellant was re-sentenced to three and a half years imprisonment with a non-parole period of two and a half years. The appellant was also to be registered as a serious sexual offender pursuant to the relevant legislation. The appeal was upheld on the basis that the original sentence did not appropriately consider the mitigating factors and was manifestly excessive.

Orders