DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360 (7 December 2017)

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CRIMINAL LAW – Director’s appeal against sentence – Incest and related offences – Sentenced on charge 1 (incest) to 3 years and 6 months’ imprisonment – Act of sexual intercourse with 13 year old stepdaughter resulting in pregnancy – Total effective sentence 5 years and 6 months’ imprisonment with non-parole period of 3 years – Appeal originally dismissed – High Court reversed decision of Court of Appeal – Remittal of appeal – Issue whether sentence on charge 1 manifestly inadequate – Appeal allowed – Respondent resentenced on charge 1 to 7 years and 6 months’ imprisonment – New total effective sentence 9 years and 6 months’ imprisonment with non-parole period of 6 years – Director of Public Prosecutions v Dalgliesh [2017] HCA 41; (2017) 91 ALJR 1063 considered.

1 The respondent, now aged 45, pleaded guilty, in September 2015, in the County Court at Warrnambool, to a total of four charges involving the sexual abuse of two young girls, ‘A’ and ‘B’.

2 As regards A, he pleaded guilty to one charge of incest (charge 1) and one charge of sexual penetration of a child under 16 (charge 4). At the time of the offence giving rise to charge 1, A was the respondent’s stepdaughter. As a result of the respondent having had sexual intercourse with her, she fell pregnant. The pregnancy was subsequently terminated.

3 It was unclear whether the respondent had yet entered into a de facto relationship with A’s mother, ‘JS’, when the offence giving rise to charge 4 was committed. Accordingly, that offence was charged as sexual penetration of a child under 16, rather than incest.

4 The respondent also pleaded guilty to one act of incest (charge 2) and one act of indecent assault (charge 3) upon A’s sister, B. She was aged between 15 and 16 at the time of the commission of these offences.

6 On 8 October 2015, the Director of Public Prosecutions (‘the Director’) filed a notice of appeal against the sentence. There were two grounds of appeal upon which the Director relied. These were (1), that the sentence on charge 1 was manifestly inadequate, and (2) that the orders for cumulation resulted in a total effective sentence which was itself manifestly inadequate.

7 On 29 June 2016, the Court of Appeal dismissed the Director’s appeal (‘the first appeal’). On 11 October 2017, the High Court allowed an appeal from that decision, and remitted the matter to be heard again by this Court.

8 In 2009, A’s mother, JS, and the respondent entered into a relationship and subsequently moved in together. JS had two daughters, A and B, as well as a son, all from a prior relationship. The family lived at JS’s father’s house in rural Victoria. The older daughter, B, had been diagnosed with a mild intellectual disability. She also suffered from attention deficit hyperactivity disorder.

9 Charge 1, incest involving A, took place sometime between January and March 2013. A was aged 13 at the time. While JS was taking a shower, A entered the main bedroom. The respondent happened to be there at the time. He had sexual intercourse with her. As previously indicated, she fell pregnant as a result.

10 A told her mother that the pregnancy was the result of her having had sexual intercourse with a local boy from school. Believing that to be so, JS decided that there was no alternative, but to move away from the small town where they had been living. The family were uprooted, and moved to another part of rural Victoria.

11 The respondent was of course well aware that A had lied to her mother regarding the circumstances under which she had become pregnant. He went along with her deception and JS unwittingly allowed their relationship to continue.

12 The respondent committed a separate act of sexual penetration upon A at some stage during the four year period between her having been aged 9 and 13, (charge 4). The offences the subject of charges 2 (incest) and 3 (indecent assault) were both committed against B in 2014. It is unnecessary to go into the details of any of those offences.

13 It was common ground, before this Court, that the matter remitted by the High Court concerned the adequacy of the sentence imposed on charge 1, and not the orders for cumulation that had been the subject of ground 2 when this matter was first heard by the Court of Appeal. That was primarily because the Director had confined his appeal to the High Court to ground 1, which challenged the sentence imposed on charge 1.

14 During the course of oral submissions before this Court, Senior Counsel for the Director made it clear that he would take no issue with the orders made for cumulation, assuming that ground 1 succeeded and the sentence on charge 1 was increased.

15 The judge treated the fact that A fell pregnant as a result of the offending giving rise to charge 1 as a significant aggravating factor. His Honour, having had regard to JS’s victim impact statement, described the offence as having had a ‘profoundly traumatic effect’ upon both A and her mother.

16 The judge took into account, by way of mitigation, the respondent’s early plea of guilty, his lack of prior convictions, and his genuine remorse. He considered the respondent to have good prospects of rehabilitation, noting in particular that he had strong family support.

17 The judge also took into account evidence that, at the time of the relevant offending, the respondent was suffering from post-traumatic stress disorder, as well as depression. He was also said to be on the lower end of the autism spectrum, which impaired his impulse control and judgment.

18 After the Director’s notice of appeal was filed, the Deputy Registrar of the Court, at the behest of the Court, wrote to the parties. That email, dated 21 January 2016, stated that:

19 The email went on to say that the Court considered the present case to be an appropriate vehicle for consideration to be given to the ‘adequacy of current sentencing practices’ for incest. The email added that the Court’s ‘decision on the general question will not, of course, affect the outcome of the appeal’.

20 The reference in the email to ‘the general question’ was, no doubt, a reference to the invitation to make submissions about the adequacy of current sentencing practices for incest. Expressed in that way, this reflected the practice endorsed by this Court in Director of Public Prosecutions v CPD^[2] regarding whether an increase in current sentencing practice for a particular type of offence should be signalled, without it being determinative of the specific appeal before the Court.

21 In Poyner v The Queen,^[3] the High Court, in refusing special leave to appeal against sentence, briefly addressed a related issue. It spoke of how an intermediate appellate court should approach the problem of prevailing sentences being considered too light. In a joint judgment the Court referred to the remarks of Bray CJ in R v Barber,^[4] where it was said that if the prevailing standard of sentences for a particular offence is too low, ‘it can be raised after due warning, but by steps and not by leaps’. The Court also noted that similarly, in Breed v Pryce,^[5] Nader J observed that if the view were taken that past penalties had been too light, the position should be corrected by an upward trend in penalties rather than by an abrupt increase. These statements were said to provide ‘useful guidance’, but not to erect a binding principle.

22 It was against that background, including what had been said in Poyner, that Redlich JA, in Ashdown v R,^[6] concluded that where a prisoner has pleaded guilty, this Court should not, as a matter of fairness, visit upon the prisoner a higher sentencing regime than that which the Crown had accepted was applicable at the time of sentence. Recognising that Poyner was merely a refusal on the part of the High Court to grant special leave,^[7] his Honour nonetheless referred specifically to that decision, and the consideration that a prisoner was to be taken as having pleaded guilty in the expectation that he would be sentenced consistently with current sentencing practice.^[8]

23 During the course of the first appeal, the Director focused primarily upon what he submitted to be the manifest inadequacy of the sentence imposed on charge 1. Ground 2 received less attention. It is important to note that the Director did not challenge any of the individual sentences imposed on charges 2, 3 and 4.

24 In support of ground 1, it was submitted that the offending that gave rise to charge 1 fell within the ‘mid-range category of seriousness’ in terms of objective gravity. It was submitted, however, that A’s pregnancy was an obvious aggravating factor that had to be taken into account.

25 The respondent submitted, in the first appeal, that while the sentence on charge 1 might properly be characterised as ‘lenient’, it was nonetheless within the permissible range and could not be considered manifestly inadequate. This was said to be demonstrated by reference to ‘current sentencing practices’ for the offence of incest.

26 The Court which heard the first appeal rejected both grounds. In what it described as ‘Pt A’ of its judgment, it observed that the Director was:

27 The Court noted that s 5(2)(b) of the Sentencing Act 1991 requires judges to have regard to ‘current sentencing practices’. It then went on to consider a significant number of cases of incest that had resulted in pregnancy,^[10] noting that the range of sentences for those charges extended from four to seven years’ imprisonment. It made particular reference to two cases, Director of Public Prosecutions v BGJ^[11] and RSJ v The Queen,^[12] both said to be examples of perhaps the ‘worst category’ of incest, giving rise to pregnancy.

28 In BGJ, after a successful Crown appeal, this Court imposed a sentence of six years’ imprisonment on a single charge of incest resulting in pregnancy. In RSJ, the applicant had been sentenced on a number of charges of incest and related offending to a total effective term of 22 years and five months’ imprisonment with a non-parole period of 18 years. The sentence on one of those charges of incest had been four years.

29 The individual sentences for incest in each of these two cases (in respect of offending which the Court in the first appeal plainly regarded as significantly more culpable than that of the respondent in the present case), were treated as in some way, justifying the conclusion that the sentence on charge 1, though ‘extremely lenient’, was not outside the permissible range.

31 In its concluding remarks, the Court observed that, but for the constraints of current sentencing, it would have found that the sentence imposed on the respondent on charge 1 was ‘manifestly inadequate’. It went on to say that, on the basis of the principles set out earlier in its reasons for judgment, a sentence of the order of seven years’ imprisonment was warranted on charge 2, noting that the aggravating circumstance of pregnancy on charge 1 required a significantly higher sentence than that.^[14]

32 As had been foreshadowed in the email sent to the parties, the Court dealt separately with the ‘general question’ of the adequacy of current sentencing practices for incest. It did so in what it termed ‘Pt B’ of its reasons for judgment. After reviewing a number of past sentences for incest (mainly, but not exclusively, resulting in pregnancy), it concluded that sentencing practices for such cases were inadequate, and should in future be adjusted upwards.^[15]

33 The High Court concluded that the Court of Appeal, having found that the sentence on charge 1 was manifestly inadequate, erred in failing to have acted upon that finding. It ought to have allowed the appeal, and increased the sentence on that charge.

34 The High Court observed that the Court of Appeal had elevated the requirement in s 5(2)(b) of the Sentencing Act 1991 (to have regard to current sentencing practices) to the point where plainly inadequate past practices operated as an unwarranted constraint upon dealing justly with the Director’s appeal. Indeed, the High Court found that the Court of Appeal had elevated the significance of ‘current sentencing practices’ to the point where they had become determinative of the issue before that Court.

35 Before the High Court, the Director submitted that nothing in s 5(2) suggested that a sentencing judge should give greater emphasis to ‘current sentencing practices’ than to any other of the various factors set out in that subsection. Current sentencing practices should not operate, in that sense, as an ‘arithmetic fetter’ upon the exercise of the sentencing discretion.

36 In addition, the Director submitted that the Court of Appeal had erred in regarding BGJ and RSL as fixing the range of sentencing appropriate to the ‘worst category’ of incest. The Director further submitted that the Court of Appeal had erred by using that finding as the basis for not increasing the sentence imposed upon the respondent on charge 1.

37 Finally, the Director submitted that Pt B of the Court of Appeal’s reasons demonstrated the endemic inadequacy in this State of the sentences imposed for incest. That finding in Pt B (which the Director wholly supported before the High Court), was said to provide an additional reason why the first appeal should have succeeded.

38 It is fair to say that the Director’s submissions were, by and large, accepted by the High Court. It concluded that the ‘constraints of current sentencing’ had been the determinative factor in the first appeal having been dismissed. It went on to say that the overriding importance attached by the Court of Appeal to the need to adhere to the range suggested by the ‘comparable cases’ discussed in the judgment had contributed to that error.

39 In dealing with the position taken by the Court of Appeal in Pt A of its judgment, Kiefel CJ, Bell and Keane JJ, (‘the joint judgment’) emphasised a number of matters, which may be briefly summarised as follows:

(a) The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.^[16]

(b) The criminal justice system should operate fairly, and that involves, among other things, reasonable consistency. The consistency that is sought is consistency in the application of relevant legal principles, but does not require adherence to a range of sentences that are demonstrably contrary to principle. In that regard, comparable cases may serve as yardsticks.^[17]

(c) Current sentencing practices for incest in Victoria did not reflect the objective gravity of the offending in such cases.^[18]

(d) The Court of Appeal’s conclusion that the sentence imposed upon the respondent on charge 1 amounted to an error of principle was clearly correct.^[19]

(e) The decision of the Court of Criminal Appeal in R v Kaye^[20] that a sentence of six years’ imprisonment with a non-parole period of four years, on a charge of incest, was manifestly excessive, was ‘remarkable even for its own time’. In the years since Kaye was decided, sexual abuse of children by those in positions of authority over them had come to be revealed as a most serious blight on society, with devastating consequences for its victims.^[21]

(f) In the present case, the Court of Appeal’s conclusion that there had been a misapplication of principle which affected the range of sentences applied by the sentencing judge was sufficient to warrant appellate intervention on the ground of manifest inadequacy. There was no good reason, in those circumstances, for the Court of Appeal not to have corrected the error of principle which it had properly recognised.^[22]

(g) The ‘bifurcated’ approach taken in this case by the Court of Appeal to the Director’s appeal had proceeded on the basis that this course was necessary to avoid perceived unfairness to the respondent, while at the same time allowing the Court to correct potential future unjustifiably low sentences for offending of this kind. That approach was founded on the assumption that the offender had pleaded guilty in the expectation that he would be sentenced consistently with current sentencing practices. Even if that assumption were well founded, it did not justify the approach taken by the Court of Appeal. The only expectation that an offender can have at sentencing is of the imposition of a just sentence according to law. An offender can have no expectation of a manifestly inadequate sentence, whether or not he or she has pleaded guilty.^[23]

(h) Section 5(2)(b) of the Sentencing Act 1991 did not require the Court of Appeal to refrain from acting to remedy what it recognised to be a manifest injustice resulting from the perpetuation of the error of principle.^[24]

40 To the views expressed in the joint judgment, may be added the following observations by Gageler and Gordon JJ:

(a) The mandatory considerations in s 5(2) of the Sentencing Act 1991 are diverse. No one consideration is required to be assessed in a particular manner or accorded particular weight.^[25]

(c) The Court of Appeal had concluded, in relation to the respondent that, but for the constraints of current sentencing practice, the objective gravity of his offending would have demanded a considerably longer sentence.^[27]

(d) That approach to current sentencing practice appeared to have originated in the Court’s earlier decision in CPD.^[28] That case manifested the error of treating current sentencing practice as fixing quantitative boundaries in which future sentences were required to be passed.^[29]

(e) The desirability of consistency in the application of sentencing principles provided no basis for treating s 5(2)(b) as though it were a statutory command to sentence within a ‘band’ derived from current sentencing practices.^[30]

(f) Examination of sentences passed in comparable cases may inform the task of sentencing. However, such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.^[31]

(g) A plea of guilty does not diminish or alter the duty of the sentencing judge or a Court of Criminal Appeal to sentence according to law. The duty is to impose a sentence that is appropriate in all the circumstances of the case. It is not consistent with that duty to permit a manifestly inadequate sentence to stand.^[32] Earlier decisions of the Court of Appeal^[33] to the contrary are wrong and are not to be followed or applied.^[34]

41 The Director submitted that the sentence of three years and six months’ imprisonment on charge 1 was manifestly inadequate. He further submitted that, as a consequence, and in accordance with the judgment of the High Court, the appeal should be allowed, and the respondent resentenced on that charge.

42 Senior Counsel for the Director pointed to the objective gravity of the offending, and the high degree of moral culpability that attached to it. He submitted that the Court of Appeal, in the first appeal, had correctly recognised the seriousness of the offence giving rise to charge 1. He submitted that the Court of Appeal’s finding that the sentence was manifestly inadequate was unimpeachable. He contended that that finding had, at the very least, been tacitly approved by the High Court. The Court of Appeal’s error had been to fail to act upon its own finding.

43 Senior Counsel for the Director drew attention to the concluding remarks in the reasons for judgment in the first appeal. As indicated, these were to the effect that charge 2 (incest involving B), warranted a sentence of the order of seven years’ imprisonment, and, tellingly, that the sentence on charge 1 (incest involving A) should have been ‘significantly higher’ than that.^[35]

44 The Director noted a suggestion made in the respondent’s Written Case that the residual discretion should be exercised in his favour. It was submitted that there was no basis whatever for the exercise of that discretion.

45 Senior Counsel for the respondent first submitted that, notwithstanding the Court of Appeal’s finding in the first appeal that the sentence on charge 1 was manifestly inadequate, this Court, differently constituted on remitter, should consider the matter afresh, and arrive at a different conclusion.

46 In his written submissions, dated 9 November 2017, Senior Counsel put the matter this way:

47 It was submitted, in the alternative, that even if this Court were to conclude that the sentence on charge 1 was manifestly inadequate, it should exercise its residual discretion and dismiss the Director’s appeal.^[37] Senior Counsel reminded the Court that once a reasonable case for the exercise of that discretion had been put forward on behalf of a respondent to a Director’s appeal, the burden shifted to the Director of negating any reason why the discretion should be exercised.^[38]

48 In support of the exercise of the residual discretion, Senior Counsel relied upon a number of factors that he submitted, taken together, made a compelling case which the Director could not rebut.

49 First, it was submitted that the prosecutor on the plea, had failed to do all that was reasonably required to assist the sentencing judge to avoid imposing an inadequate sentence. In particular, it was said that the prosecutor had failed to make any submission regarding the objective gravity of the offence. In addition, he had failed to identify any relevant aggravating factors, or point to any relevant sentencing principles. He had not drawn attention to any relevant comparators, the content of any ‘current sentencing practices’, or any relevant sentencing statistics.

50 Secondly, it was submitted that in circumstances where the purpose of a Director’s appeal against sentence is understood to lay down broad principles for the governance and guidance of sentencing courts,^[39] given the notoriety which this case had attracted that purpose had already been well and truly achieved. It was submitted that the respondent, through no fault of his own, now found himself in the unenviable position of having had this matter hanging over his head for more than two years. On any view, the delay in resolving this appeal had to be extremely stressful so far as he was concerned.^[40] That was a matter legitimately to be taken into account in the exercise of the residual discretion.

51 When Senior Counsel was reminded that, in its reasons for judgment, the High Court had rejected his submission before that Court, that the residual discretion should be exercised, he replied that not all of the matters upon which he now sought to rely had been drawn to that Court’s attention. Though, the question of the prosecutor’s conduct on the plea had been raised, the other matters upon which the exercise of the discretion were said to rest had not been argued.

52 Thirdly, it was submitted that the Director, having succeeded in his appeal to the High Court, had ‘corrected’ that which required correction. Having achieved all that he conceivably could have hoped, there was no longer any need to visit an increased sentence upon the respondent.

53 Senior Counsel developed that submission by arguing that the High Court had clarified five matters, all of them based upon the Director’s contentions on the appeal to that Court. In Senior Counsel’s terms, these were:

54 Fourthly, and as a further alternative, it was submitted that even if this Court were of the view that the sentence on charge 1 was manifestly inadequate, and the submission that the residual discretion be exercised was rejected, any increase in the sentence on that charge should be moderate, and balanced by varying the orders for cumulation made below so as to leave the respondent in essentially the same position as he presently finds himself. This would ‘compensate’ him for the ordeal to which he had been exposed by having this matter hang over his head for such a lengthy period.

55 It is necessary to digress for a moment to deal with one particular submission put forward on behalf of the respondent during the course of oral argument. That submission went to the effect of the High Court’s decision upon general sentencing principles in this State and, more particularly, whether the sentencing landscape had been changed to such a degree as to warrant treating the respondent more leniently than would otherwise be appropriate.

56 Senior Counsel for the respondent submitted that the High Court’s judgment in this matter had put paid to ‘an enormous amount’ of this Court’s jurisprudence dealing with general principles of sentencing in this State. We consider that submission to be overstated, and misconceived.

57 As previously indicated, the respondent’s further written submissions dated 9 November 2017, set out what Senior Counsel described as five contentions, put on behalf of the Director, which the High Court had accepted. The five contentions so described, seem to us, in fact, to amount only to two. They are:

(a) current sentencing practices cannot be treated as decisive or determinative of the appropriateness or otherwise of a sentence, and

(b) it is incorrect to proceed on the basis that the consequence of a conclusion that current sentencing practice is inadequate cannot, or should not, be visited upon an offender who has pleaded guilty.

58 It is certainly true that the High Court has endorsed the Director’s contention regarding proposition (b).^[41]

59 As to proposition (a), this Court has never, so far as we can tell, treated current sentencing practices as ‘determinative’, other than in the context of the (now revealed to be erroneous) assumption concerning offenders who have pleaded guilty.^[42]

60 For example, in Director of Public Prosecutions v OJA,^[43] Nettle JA (as his Honour then was), pointed out that, while current sentencing practices were a necessary and useful reference point, they were not to be regarded as fixed and immutable. Indeed, his Honour, made it clear that the need to have regard to such practices did not mean that the measures of manifest excessiveness and manifest inadequacy were ‘capped and collared’ by the highest and lowest sentences hitherto imposed.

61 Even more clearly to the same effect was R v AB (No 2).^[44] There, it was made abundantly plain that ‘current sentencing practice’ was but one of the matters to which a sentencing judge should have regard, but by no means determinative. The Court said:

62 The High Court’s judgment, when read in context, makes it clear that this Court’s previous approach to current sentencing practices as ‘determinative’, where a plea of guilty has been entered on the footing that there would be adherence to the general range of sentences previously imposed, should no longer be accepted. Current sentencing practice should no longer operate as a constraint upon the imposition of a sentence that departs from such practice where the result of sentencing in conformity with past sentences would lead to a sentence that was manifestly inadequate.

63 The decisions of this Court specifically identified by Gageler and Gordon JJ as those which should no longer be followed all turned upon a much narrower point than Senior Counsel for the respondent ascribed to them. They all involved determinative weight seemingly having been given to current sentencing practices, at least where it could be assumed that the accused had pleaded guilty in the expectation of being dealt with in accordance with those practices.

64 There is also a note of caution in the High Court’s judgment regarding the appropriateness of this Court in giving general judicial guidance, for the future, which plays no part in the actual determination of the matter before it.^[46] As the joint judgment noted, there are plainly constitutional issues in relation to the exercise of such a power if federal jurisdiction is engaged.^[47] Beyond that, however, the High Court warned against too readily providing such guidance, via the vehicle of ‘bifurcation’ because such an approach might be inconsistent with the Sentencing Act 1991. We note however, that the joint judgment indicated that it was not necessary, in this case, to reach a conclusion as to whether the ‘bifurcated’ approach taken in the first appeal was in conformity with that Act.

65 While the High Court strongly implied that it viewed with disfavour ‘bifurcated’ judgments of the kind adopted by this Court in the first appeal, there is nothing in its judgment to suggest that it disapproved more broadly of general statements as to the adequacy or otherwise of sentences for a particular type of offence, so long as those statements arose directly out of, and were linked to, the actual determination of the matter before the court. Such statements are not ‘bifurcation’ of the kind deprecated by the High Court.

66 Turning then to the outcome of this particular appeal, it is useful to note that the offence of incest involving a young child has long been regarded as being one of particular repugnance.

67 In R v Sposito,^[48] the Court of Criminal Appeal highlighted how parent-child incest constitutes a most abhorrent abuse of trust, due, in part, to the inherent vulnerability of the young victims in such cases. In his judgment, Marks J (with whom Hampel and McDonald JJ agreed) stated:

68 Recently, in Gabe Talbot (a pseudonym) v The Queen,^[50] this Court refused an application for leave to appeal against sentence brought by a stepfather, who had pleaded guilty on two charges of persistent sexual abuse of a child under 16, as well as two charges of incest, involving his stepdaughters. He was sentenced to a total effective term of 15 years’ imprisonment with a non-parole period of 10 years.

69 In refusing leave to appeal in that case, the Court commented upon the gross breach of trust involved in cases of parent-child incest, as well as the enormous harm done to victims. It endorsed the sentencing judges’ comments regarding their loss of a normal and happy childhood, and their inability to flourish as young women. It further noted that unprotected penile intercourse with each of the victims had exposed them to the risk of pregnancy as well as sexually transmitted diseases. That risk of pregnancy had been realised in relation to one of the victims, who had then been subjected to the trauma of a termination.^[51]

70 In R v KHB,^[52] this Court noted that it is ‘a well-known fact that young victims of incest carry the scar for their lives’.

71 In our view, the offending giving rise to charge 1, represented a serious example of parent-child incest. It involved a 13 year old girl who fell pregnant as a result of the respondent’s entirely purposeful, and wholly reprehensible conduct. The offence was further aggravated by his having stood by, while his stepdaughter lied to her mother about who had impregnated her, resulting in the family having to be uprooted.

72 The victim impact statement provided by JS spoke eloquently of the harm that the respondent’s conduct had inflicted upon her daughters and herself. It records A’s history of self-harm and of suicidal ideation. JS herself has experienced anxiety and depression.

73 Sentencing for parent-child incest of the kind that gave rise to charge 1 must reflect the respondent’s grave breach of trust. It must act as a deterrent, general and specific, and it must signify the community’s firm denunciation of conduct of this kind.

75 The maximum penalty for incest, being 25 years’ imprisonment,^[55] reflects the community’s abhorrence of that offence. Such matters of mitigation as were present in this case were deserving of only moderate weight. The sentence of three years and six months’ imprisonment imposed on charge 1 was not merely ‘lenient’, but wholly outside the range reasonably available for offending of this seriousness.

76 There is no basis, in our view, for the exercise by this Court of its residual discretion. None of the submissions put forward on behalf of the respondent in support of the exercise of that discretion, whether considered individually or in combination, warrant a refusal by this Court to ensure that the respondent receives just and appropriate punishment.

77 We do not accept the submission that the prosecutor, on the plea, had contributed to the error made by the sentencing judge in imposing the sentence that he did. Nothing said or done by the Director in the first appeal should be taken as acquiescence in any error made below. As the High Court observed, it could not be suggested that the Director was responsible for the position taken by the Court of Appeal, and communicated to the parties in the email regarding the possible constraint of ‘current sentencing practices’, having regard to the plea of guilty.

78 Nor are we persuaded that we should exercise the Court’s residual discretion merely because the Director has enjoyed considerable success in the High Court. The submission that there is no need, therefore to increase the sentence on charge 1 pays no heed to this Court’s finding, both in the first appeal, and now, that the sentence on that charge was manifestly inadequate. It invites this Court to allow such a sentence to stand in order to ‘compensate’ the respondent for having to ensure a lengthy wait to have his matter finalised. That seems to us to go too far. It ignores the High Court’s own strictures as to the importance of correcting a sentence that is wholly inadequate.

79 Finally, we consider that there is no basis for interfering with the orders for cumulation made in respect of charges 2, 3 and 4. The total of two years cumulation upon the base sentence on charge 1, for those quite separate offences, involving a quite separate victim, in the case of charges 2 and 3, was moderate.

80 In addition, charges 3 and 4 involved terms of imprisonment imposed on a ‘serious offender for a relevant offence’. Accordingly, they fell within the ambit of s 6E of the Sentencing Act 1991. Presumptively therefore, and subject to the principle of totality, they called for at least some measure of cumulation. It would be a distortion of basic sentencing principle to interfere with those orders for cumulation merely to adjust for the fact that this is not a case that warrants the exercise of the residual discretion.

81 We would order that the Director’s appeal be allowed. The sentence on charge 1 will be set aside. In lieu thereof, the respondent will be sentenced on that charge to a term of 7 years and 6 months’ imprisonment. That will be the new base sentence. The individual sentences on charges 2, 3 and 4 will each be affirmed. So too, will be the orders for cumulation upon the base sentence. All other ancillary orders will be affirmed. The effect of these orders is that the respondent is sentenced to a total effective term of 9 years and 6 months’ imprisonment. We fix a new non-parole period of six years.

82 We should say that, in arriving at the new sentence on charge 1, as well as the new total effective sentence and non-parole period, we have given some weight to the submission put on behalf of the respondent that, through no fault of his own, he has had to endure the strain of having had this Director’s appeal hang over his head for more than two years. While that is far from sufficient to justify the exercise of the residual discretion, and in no way diminishes the gravity of the respondent’s offending, it has led us, in accordance with authority,^[56] to impose a slightly lower sentence on charge 1, (and consequently a lower total effective sentence and non-parole period) than might otherwise have been appropriate.^[57]

83 We should also make clear that the fact that the sentence of three years’ imprisonment on charge 2 is affirmed does not mean that this Court regards that sentence as anywhere near appropriate. It was the Director’s decision not to challenge that individual sentence, either in the first appeal or, indirectly, as part of his appeal to the High Court that leaves it standing. That is so notwithstanding its apparent incongruity when compared with the sentence now imposed on charge 1.

84 Pursuant to s 6AAA of the Sentencing Act 1991, it is declared that but for the respondent’s plea of guilty the Court would have imposed a total effective sentence of 12 years’ imprisonment with a non-parole period of 9 years.

^[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

^[2] [2009] VSCA 114; (2009) 22 VR 533 [69] (‘CPD’).

^[3] (1986) 66 ALR 264 (‘Poyner’).

^[4] (1976) 14 SASR 388, 389–390.

^[5] (1985) 36 NTR 23.

^[6] [2011] VSCA 408; (2011) 37 VR 341, 410 [207].

^[7] However, when Poyner was decided in 1986, applications for special leave to appeal in criminal cases were always dealt with, in the one proceeding, in conjunction with the hearing of the merits of the appeal. Accordingly, reasons for refusing special leave in cases going back before 1991 may have precedential effect in a way in which such reasons in later criminal cases, or civil cases, do not. See Perara-Cathcart v The Queen [2017] HCA 9; (2017) 341 ALR 535 [147] per Gordon J. See also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, noting that in civil cases reasons given for refusing special leave create no precedent, and are binding on no one.

^[8] Ashdown v R [2011] VSCA 408; (2011) 37 VR 341, 409–411 [202]–[208]. Maxwell P agreed with Redlich JA on this point [25]. Ashley JA differed, holding that there was a serious question whether, in an ordinary appeal, it could be compatible with the Sentencing Act 1991 for the Court to identify criteria in the manner proposed by the Crown as bearing upon assessment of the gravity of the particular offence. His Honour added that while sentencing range could be informed by ‘current sentencing practices’ and ‘comparable cases’ he considered that ‘relentless reference by this court to current sentencing practices and the recitation of statistics’ had the capacity to distort the process of instinctive synthesis. He went on to add that his own preferred analysis did not mean that the court was disabled from addressing a challenge to the adequacy of current sentencing practices for a particular offence or category of that offence, provided it arose out of an issue raised between the Crown and the accused, or as he put it a ‘live issue’ [162]–[168].

^[9] DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [5] (citation omitted). The reference in the passage cited to ‘the sentences imposed’ included both the sentence on charge 1, and the total effective sentence.

^[10] The Court considered the following cases as possible comparators: R v Ware [1997] 1 VR 647; OAA v The Queen [2010] VSCA 155; GEM v The Queen [2010] VSCA 168; R v VZ [1998] VSCA 32; [1998] 7 VR 693; DPP v WJW [2000] VSCA 170; (2000) 2 VR 497; CF v The Queen [2010] VSCA 275; DPP v CJA [2013] VSCA 18; DPP v BDJ [2009] VSCA 298; DPP v BGJ [2007] VSCA 64; (2007) 171 A Crim R 74; RSJ v The Queen [2012] VSCA 148; DPP v Tanner (a pseudonym) [2015] VCC 1915; DPP v EK (Unreported, County Court of Victoria, Judge Lacava, 23 August 2013).

^[11] [2007] VSCA 64; (2007) 171 A Crim R 74 (‘BGJ’).

^[12] [2012] VSCA 148 (‘RSJ’).

^[13] DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [53].

^[14] Ibid [132].

^[15] Ibid [131].

^[16] DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063, 1072 [49] citing Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 [27].

^[17] DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063, 1073 [50].

^[18] Ibid [53].

^[19] Ibid.

^[20] (1986) 22 A Crim R 366 [367]–[368] (‘Kaye’).

^[21] DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063, 1074 [55].

^[22] Ibid [60].

^[23] Ibid [64]–[65].

^[24] Ibid [76].

^[25] Ibid [79].

^[26] Ibid.

^[27] Ibid [80].

^[28] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533.

^[29] DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063, 1077 [81].

^[30] Ibid [80].

^[31] Ibid [83].

^[32] Ibid [85].

^[33] The particular passages singled out by Gageler and Gordon JJ appear in footnotes 89 and 91 of the High Court judgment. They are: Hasan v R [2010] VSCA 352; (2010) 31 VR 28 [42]–[43]; Ashdown v R [2011] VSCA 408; (2011) 37 VR 341 [4], [32], [48], [55], [207]–[208]; Harrison v R [2015] VSCA 349; (2015) 49 VR 619 [49], [71], [86]; DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444 [65]; DPP v CPD [2009] VSCA 114; (2009) 22 VR 533 [69]; Winch v R [2010] VSCA 141; (2010) 27 VR 658 [23]–[27].

^[34] DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063, 1078 [85].

^[35] DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [132].

^[36] Respondent’s Further Submissions dated 9 November 2017, [13]–[14] (emphasis in original).

^[37] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634.

^[38] CMB v Attorney-General (NSW) (2015) 256 CLR 346.

^[39] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

^[40] Senior Counsel relied upon an updated psychologist’s report of 5 November 2017 confirming the detrimental effect that the uncertainty concerning the respondent’s future had had upon him. That report referred, at several points, to the stress that the respondent was suffering from the protracted outcome of the Director’s appeal.

^[41] We note that views similar to those expressed by the Court of Appeal in relation to this proposition had previously been expressed in other States. For example, in R v D [1997] SASC 6350; (1997) 69 SASR 413 Doyle CJ (with whom Bleby J relevantly agreed), while allowing an appeal against sentence based on past sentencing practices in South Australia, made it clear that in future, more severe sentences for offending of the kind then under consideration should be imposed. Poyner was cited in support of that approach.

^[42] See for example R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391 [45] (’R v AB (No 2)’).

^[43] (2007) A Crim R 181.

^[44] [2008] VSCA 39; (2008) 18 VR 391.

^[45] Ibid [44]–[45] per Warren CJ, Maxwell P and Redlich JA (citations omitted) (our emphasis).

^[46] DPP v Dalgliesh (a pseudonym) (2017) ALJR 91 1063, 1076 [70].

^[47] Ibid.

^[48] (Unreported, Supreme Court of Victoria Court of Appeal, Marks, Hampel and McDonald JJA, 8 June 1993) (‘Sposito’).

^[49] Ibid 5-7. There are many statements in judgments of this Court to the same effect. See for example R v MJ [2000] VSCA 66 [17].

^[50] [2016] VSCA 218.

^[51] R v Talbot (a pseudonym) [2016] VCC 995 cited in Talbot (a pseudonym) v The Queen [2016] VSCA 218 [19].

^[52] [2004] VSCA 219 [105].

^[53] [2006] VSCA 120.

^[54] Ibid [42] (Vincent JA) (citations omitted).

^[55] Crimes Act 1958 (Vic) s 44(2).

^[56] See generally R v Wei Tang [2009] VSCA 182; (2009) 23 VR 332 [71] per Maxwell J, Buchanan and Vincent JJA.

^[57] We refer to the psychologist’s report of 5 November 2017 mentioned above at footnote 40.

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URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2017/360.html

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant

v

CHARLIE DALGLIESH (A PSEUDONYM)^[1]	Respondent

JUDGES:	FERGUSON CJ, WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2017
DATE OF JUDGMENT:	7 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 360
JUDGMENT APPEALED FROM:	DPP v Dalgliesh (a pseudonym) (Unreported, County Court of Victoria, Judge Dean, 11 September 2015)

APPEARANCES:	Counsel	Solicitors

For the Crown	Mr G Silbert QC with Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions

For the Respondent	Mr O P Holdenson QC with Mr P Tiwana	Joseph Burke Law

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Incest [Crimes Act 1958 s 44(2)]	25 years	3 years 6 months	Base
2	Incest	25 years	3 years	9 months
3	Indecent assault [Crimes Act 1958 s 39(1)]	10 years	1 year 6 months	6 months
4	Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)]	10 years	3 years	9 months
Total effective sentence:		5 years and 6 months’ imprisonment
Non-Parole period:		3 years
Pre-sentence Detention Declared:		Nil
6AAA Statement		8 years’ imprisonment with a non-parole period of 5 years.
Other relevant orders:		Forensic Sample Order; registered on the Sex Offenders Register for life; Sentenced as a serious sexual offender in respect of Charges 3 and 4.

Supreme Court of Victoria - Court of Appeal

DPP v Dalgliesh (a Pseudonym) [2017] VSCA 360 (7 December 2017)