The Court of Appeal has allowed an appeal by the Director of Public Prosecutions and increased the sentence imposed on a stepfather, who pleaded guilty to a charge of incest against his 13 year old stepdaughter, from 3 years and 6 months’ imprisonment to 7 years and 6 months’ imprisonment.

The charge that was the subject of the appeal was one of four related charges.  Sentences on the related charges were not appealed.

The respondent was initially sentenced on the relevant incest charge by a County Court judge in September 2015. The charge was considered particularly serious because it resulted in the 13 year old stepdaughter becoming pregnant.

The Director appealed the sentence in October 2015 primarily on the ground that the individual sentence imposed was manifestly inadequate. In June 2016, the Court of Appeal dismissed the appeal. The Director successfully appealed to the High Court.

Importantly, the High Court stated that, irrespective of a guilty plea, there is no reason why an offender should not be sentenced in accordance with the individual circumstances of the case. This was a reference to a view previously expressed by the Court of Appeal to the effect that where an offender pleads guilty in the expectation of being sentenced in accordance with current sentencing practices, then as a matter of fairness a court should not impose a sentence outside the range revealed by those practices. The High Court said current sentencing practice was one of the factors to be taken into account in sentencing, but it was not the controlling factor.

The High Court sent the case back to the Court of Appeal for the offender to be re-sentenced. Different judges of the Court of Appeal heard the matter on 16 November 2017.

The Court noted the charge represented a serious example of parent-child incest. It described the offender’s conduct as ‘wholly reprehensible’ and, in sentencing, referred to the harm inflicted upon the offender’s stepdaughters and their mother.

The Court noted that the new sentence took into account the fact that, through no fault of his own, the offender has been subject to prolonged and consecutive appeals by the Director which have hung over his head for more than two years. The Court stated that while this did not diminish the gravity of what the offender had done, it did lead to a slightly lower sentence on charge 1 than might otherwise have been appropriate.

The new sentence on the relevant charge of 7 years and 6 months’ imprisonment results in an increase in the total effective sentence from 5 years and 6 months to 9 years and 6 months’ imprisonment.

The Court fixed a new non-parole period of 6 years.

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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.

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Author
Supreme Court of Victoria
Publisher
Supreme Court of Victoria
Date of Publication

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