Today (11 October 2017) the High Court of Australia handed down a judgement in the case of Director of Public Prosecutions v Charlie Dalgliesh (A Pseudonym)  HCA 41. The issue on appeal was whether the Court of Appeal was correct to determine that the sentence given was within the range indicated by current sentencing practices and so to dismiss an appeal, even though the Court also concluded that the range was so low that it "reveals error in principle". The High Court unanimously allowed the appeal, saying that the range established by current sentencing practices should not have been treated as decisive.
The respondent pleaded guilty to committing sexual acts on two children who were under the age of 16 years between 2009 and 2013, and who were the children of the respondent’s then de facto partner. One of these offences resulted in a pregnancy, and the sentence on this charge was three years and six months’ imprisonment. The sentencing judge sentenced the respondent to 3 years and 6 months’ imprisonment for Charge 1. The remaining sentences for the other charges were ordered to be served cumulatively upon the sentence for charge 1 and upon each other, resulting in a total effective sentence of 5 years and 6 months’ imprisonment.
The appellant, Director of Public Prosecutions ('DPP') appealed to the Victorian Court of Appeal on two grounds:
However on 18 March 2016 the Victorian Court of Appeal dismissed the DPP’s appeal because it had determined that the DPP had failed to establish that the sentence imposed on the respondent was outside the range of sentence reasonably open to the sentencing judge based on the legislation. However the Court of Appeal also noted that the current sentencing practices for incest, as provided in section 5(2) of the Sentencing Act 1991 (Vic), were inadequate. Thereafter, the DPP appealed to the High Court on the ground that the Court of Appeal erred by failing to find that the sentence imposed on Charge 1 was manifestly inadequate, and therefore committed an error because it failed to properly apply the instinctive synthesis methodology from common law.
The High Court held that the sentences given to the respondent were manifestly disproportionate to the gravity of the offence and the culpability of the respondent. Therefore, it found that the Court of Appeal should have corrected the effect of the error of principle which it had recognised in its reasons. It was held that the sentencing practices in section 5(2) should only be taken as one factor and not the only factor in the fixing of a just sentence.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Director of Public Prosecutions v Charlie Dalgliesh (A Pseudonym)  HCA 41, judgement and judgement summary.
FREE legislation news, delivered daily.
Sign up now.#WeLoveLegislation Tweets
NEW information resources - great for training.