R v W D P - [2005] VSCA 16

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 230 of 2003

THE QUEEN
	v.
W.D.P.

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2005
DATE OF JUDGMENT:	8 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 16

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Criminal law - Sentence - Incest by de facto husband of two girls aged 12 and 10 - Sentence of 10 years with minimum term of 8 years not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr D.A. Dann	Anthony P. Sofra & Co.

WINNEKE, P.:

The applicant (W.D.P.) was 53 years of age when he was sentenced in the County Court at Shepparton on 21 August 2003 following his pleas of guilty to three counts of incest, three counts of committing an indecent act with a child under 16 years of age, two counts of intentionally causing injury and one count of recklessly causing injury.

There were three victims of the applicant's offending; they were the three daughters of the applicant's partner (P.A.D.), and those children were S.R.D. (who was born on 23 October 1987); J.L.D. (born on 9 December 1989); and H.J.D. (born on 8 March 1991). P.A.D. had separated from her husband in 1995, and commenced a relationship with the applicant later in the same year. On 14 August 1996 P.A.D. and her three girls moved into the applicant's home in a country town near Shepparton. The offences to which the applicant pleaded guilty occurred between 14 October 1999 and 31 December 2000.

Following a plea on his behalf in mitigation of sentence made on 21 August 2003, the applicant was sentenced as follows:

Count 1 - indecent act with SRD: 18 months' imprisonment.
Count 2 - incest (oral penetration) with SRD: 3 years and 6 months'
imprisonment.

Count 3 - indecent act with SRD: 2 years' imprisonment.
Count 4 - intentionally causing injury to SRD: 4 months' imprisonment.
Count 5 - indecent act with JLD: 2 years and 4 months' imprisonment.
Count 6 - incest (digital penetration of JLD's vagina): 4 years' imprisonment.
Count 7 - incest (lingual penetration of JLD's vagina): 4 years' imprisonment.
Count 8 - intentionally causing injury to JLD: 6 months' imprisonment.
Count 9- recklessly causing injury to HJD, the youngest of the three girls:
4 months' imprisonment.

His Honour cumulated two months of the sentences imposed on counts 4, 8 and 9; twelve months of the sentences imposed on counts 1, 3 and 5; and 15 months of the sentences imposed on counts 2 and 6 upon each other and upon the four-year sentence imposed on count 7. The total effective sentence was therefore one of 10 years' imprisonment. His Honour fixed a period of eight years' imprisonment as the period before which the applicant would not become entitled to parole.

On 22 August 2003 the applicant, by notice, sought leave to appeal against the sentences…

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 W D P

Details

AGLC: R v W D P [2005] VSCA 16
Case: [2005] VSCA 16
Decision Date: 8 February 2005

CaseChat Overview and Summary

In the matter of R v W D P, the accused was convicted of engaging in incest with his two minor daughters, aged 12 and 10 years. The case was heard in the High Court of Australia, which was tasked with determining whether the sentence imposed by the lower court was manifestly excessive. The primary legal issue before the court was whether the sentence of 10 years imprisonment, with a non-parole period of 8 years, was disproportionate to the severity of the crime committed.

The court considered various factors in reaching its decision, including the gravity of the offence, the vulnerability of the victims, and the need for deterrence. It was acknowledged that the crime of incest involving minors is particularly heinous, and the court recognised the importance of sending a strong message that such behaviour would not be tolerated. The court also took into account the need for the sentence to reflect the principles of justice and proportionality. After carefully weighing these considerations, the court concluded that the sentence was not manifestly excessive, given the circumstances of the case.

The court held that the sentence imposed was appropriate and proportionate to the gravity of the offence. It found that the sentence reflected the seriousness of the crime and served the purposes of punishment, deterrence, and rehabilitation. The court emphasised the importance of protecting the rights and welfare of children, and the sentence imposed was deemed sufficient to achieve these objectives. The High Court, therefore, upheld the sentence imposed by the lower court, finding it to be neither manifestly excessive nor disproportionate to the offence committed.

No additional orders were made by the court in this matter.

Orders