By Nicholas Morrisey
In Director of Public Prosecutions v Dalgliesh (A Psyuedonym), the High Court (‘the Court’) unanimously allowed an appeal on sentence from the Victorian Court of Appeal (‘Court of Appeal’). In doing so, the Court again affirmed the desirability of the process of instinctive synthesis and reiterated the importance of individualised justice. No single factor in sentencing is to be afforded supremacy in such a way as to fetter discretion or allow an unjust sentence to stand. The decision also acts as a reminder for practitioners that when considering a plea of guilty, the accused’s expectation of a sentencing outcome will not act as a bar to the fixing of a just sentence.
The respondent (the accused) pleaded guilty to two acts of incest (charge 1 and 2), one act of sexual penetration of a child under 16 (charge 4) and one act of indecent assault (charge 3). He was sentenced in the County Court to an overall term of imprisonment of five years and six months with a non-parole period of three years.
The circumstances of charge 1 were that the respondent was in a de facto relationship with the complainant’s mother. The complainant was aged 13 at the time of the offence. She fell pregnant as a result and told her mother that the father was a friend from school, a lie to which the respondent acquiesced. The pregnancy was terminated and the family moved to a rural town. The indicative sentence on charge 1 was three years and six months imprisonment against a maximum penalty of 25 years.
The Director of Public Prosecutions (‘the Director’) lodged an appeal (DPP v Dalgliesh (a Pseudonym)  VSCA 148) against the sentence imposed on charge 1 (incest). The relevant ground was that the sentence was manifestly inadequate. Subsequently, the Deputy Registrar wrote to the parties, stating that the case was an appropriate vehicle to consider the adequacy of current sentencing practices for the offence of incest, but that the ‘decision on the general question will not, of course, affect the outcome of the appeal.’
The focus of the appeal was s 5(2) of the Sentencing Act 1991 (Vic), which provides a list of factors that a court is to have regard to in sentencing an offender. One of the ten factors listed is ‘current sentencing practices’ under s 5(2)(b).
The joint judgment (Maxwell ACJ, Redlich and Beach JJA) dismissed the appeal on the basis that ‘though extremely lenient’, the Director was unable to establish that the sentence imposed was outside the range of sentences reasonably open to the judge based on current sentencing practices (at ). Going even further, it was stated that ‘but for the constraints of current sentencing practice, the objective seriousness of the conduct… demanded a considerably longer sentence.’ In arriving at the decision, the Court of Appeal considered twelve cases of incest involving pregnancy, in which the range of sentences extended from four to seven years imprisonment.
As foreshadowed by the Deputy Registrar’s communication, the joint judgment undertook a bifurcated approach to the appeal. Having decided the substantive appeal in part A of its reasons, the Court in part B considered whether the current sentencing practice in relation to incest charges were inadequate. It concluded that ‘current sentencing for incest reveals error in principle’ (at ) and again stated that ‘but for the constraints of current sentencing… we would have no hesitation in concluding that the sentence imposed on [the respondent] was manifestly inadequate’ (at ).
The High Court sat as a bench of five, handing down two judgments (Kiefel CJ, Bell and Keane JJ; and Gageler and Gordon JJ), arriving at the same conclusion. Namely, that having reached the decisions that the sentence imposed was manifestly inadequate, the Court of Appeal erred in allowing current sentencing practices to bind its decision on the matter before it. Particularly in circumstances where it had established that those very sentencing practices revealed an error of principle.
The Court particularly focused on the Court of Appeal’s view that the comparable cases restricted the range of sentences ‘within which judges are able to sentence’ (VCA, ). This set an artificial ceiling to the available sentences at seven years for high range offending, despite the statutory maximum penalty of 25 years. This ignored the fact that current sentencing was but one of ten diverse factors listed under s 5(2) (at ), which, among other things, also required that a court must have regard to the maximum penalty prescribed (s 5(2)(a)) and the nature and gravity of the offence (s 5(2)(c)) (at ).
The majority judgment, citing Wong v The Queen, stressed that the process of instinctive synthesis requires that all relevant factors be considered and balanced to arrive at a sentence that is just in all the circumstances (at ). While s 5(2)(b) expresses concern that consistency in sentencing should be maintained as an aspect of the rule of law, this requires only consistent application of relevant legal principles, not strict adherence to a range of sentences that is demonstrably contrary to principle (at ).
Both judgments concluded by considering the bifurcated approach of the Court of Appeal. The majority opined that the basis for doing so was to avoid unfairness to the respondent who had pleaded guilty in expectation of a certain sentencing outcome (at ). The majority stated that ‘the only expectation that an offender can have at sentence is one of the imposition of a just sentence according to law’ (at ) and that:
it is well established that even an express plea bargain between the prosecution and the accused cannot affect the duty… to impose a sentence which appears to the court, acting solely in the public interest, to be just in all the circumstances (at ).
Final Note on Two Judgments:
There appears to be little differentiation (despite brevity) between the majority judgment and that of Gageler and Gordon JJ on the determination of the matter before it. One explanation for the separate judgment may be the avoidance of reference to broader sentencing principles, particularly instinctive synthesis. Another explanation may the apparent hint by the majority at a willingness in the future to reconsider the position that Crown appeals on sentence should be exceptional and a rarity (at ).