Written by  Joseph Burke 2016-07-08

DPP v Dalgliesh (a pseudonym) [2016] VSCA 148

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The Court of Appeal recently handed down a decision in the case of DPP  v  Dalgleish  [2016]  VSCA 148 in which Joseph Burke Law acted as the instructing solicitor. This case was an appeal brought by the Director of Public Prosecutions on the basis that Mr Dalgleish received a manifestly inadequate sentence.


An appeal was brought by the Director of Public Prosecutions against the sentence imposed on Mr Dalgliesh for multiple counts of incest and sexual assault. It was argued by the appellant  that Mr Dalgliesh received a sentence that was manifestly inadequate in the circumstances. He had been sentenced in the County Court to a  total sentence of five and a half years imprisonment, with a three year non parole period. Joseph Burke Law acted for Mr Dalgleish both in the County Court plea, and in the Court of Appeal.

While the defence conceded that this was a leniant sentence in the circumstances, it was argued that it was inappopriate to increase the sentence imposed on Mr Dalgleish by the County Court of Victoria, as the sentence was within the range of contemporary sentencing practice.

Relying on the  principle of consistency in sentencing, which requires treating like cases alike,  the Court of Appeal held the sentencing judge had to sentence in accordance with current standards of sentencing practice. Following a comprehensive review of current sentencing, the Court found that the sentences imposed, although lenient, were not outside the range of sentences "reasonably open to the sentencing judge based upon existing sentencing standards."

This argument was accepted by the Court of Appeal, who held that Mr Dalgleish's sentence could not be increased. Nonetheless, the court found it apporpriate to consider the question of whether contemporary sentencing practice was adeqaute given the leniancy of the sentence Mr Dalgleish received.

The court held:

 '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."

This decision by the court of appeal, which can be read here, will likely result in higher sentences for incest in Victoria in the years to come.

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