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Judgment handed down in DPP v Dalgliesh (a pseudonym)

29 June 2016

The Court of Appeal today said that higher sentences were required in cases of incest.

The Court found that sentences for incest were ‘disproportionately low when considered against the yardstick of the maximum penalty of 25 years’ imprisonment’.

The Court said:

In our view, current sentencing for incest reveals error in principle. The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender. Sentences for incest offences of mid-range seriousness must be adjusted upwards. That is a task for sentencing judges and, on appeal, for this Court. The criminal justice system can be — and should be — self-correcting.

Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.

The question of sentencing for incest arose in an appeal brought by the Director of Public Prosecutions. The offender had pleaded guilty to two charges of incest and one of sexual penetration. The victims were the daughters of his de facto partner.

One of the offences had resulted in a pregnancy, which was terminated. The sentence on that charge was three years and six months’ imprisonment. The total sentence was five years and six months’ imprisonment.

In dismissing the Director’s appeal, the Court pointed out that the ‘fundamental’ requirement of consistency in sentencing — which means ‘the treatment of like cases alike’ — obliged the judge to sentence in accordance with current standards. After an extensive review of current sentencing, the Court concluded that the sentences imposed — while ‘extremely lenient’ — were not outside the range of sentences ‘reasonably open to the sentencing judge based upon existing sentencing standards.’

In the Court’s view, that conclusion highlighted the inadequacy of current sentencing for incest. The Court said:

But for the constraints of current sentencing which — as we have said — reflect the requirements of consistency, we would have had no hesitation in concluding that the sentence imposed on CD was manifestly inadequate. On the basis of the principles we have set out, a sentence of the order of seven years’ imprisonment was warranted for charge 2, with the aggravating circumstance of pregnancy requiring a significantly higher sentence again on charge 1.

NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Read the full judgment on Austlii (External link)

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