High Court refers south-west incest case back to Court Of Appeal for resentencing

A THREE-AND-A-HALF-YEAR jail term handed to a south-west man convicted of incest with his 13-year-old stepdaughter, leading to her pregnancy, has been deemed inadequate by the High Court.

The High Court ruling paves the way for tougher future sentences.

The Director of Public Prosecutions contested the term - imposed as part of a more lengthy overall sentence - with Victoria's Court Of Appeal ruling it was within the permissible range, a decision deemed incorrect by the higher jurisdiction.

On Wednesday, the High Court found Victoria’s highest court erred by giving too much significance to current sentencing practices, ruling they were one factor, not the controlling factor, in fixing a just sentence.​​

The case will now be referred back to the Court Of Appeal for resentencing where it is expected a longer prison sentence will be imposed.

​Mid last year justices of the Court Of Appeal found Victorian judges were imposing  "extremely lenient" sentences for incest but declined to overturn the five-and-a-half year sentence given to a former south-west man convicted of incest against his two step-daughters, which resulted in one of the victims being impregnated at just 13.

The Court of Appeal had recommended that judges hand down higher sentences in incest cases, to better reflect the "objective gravity" of incest and the long-term harm done to victims​ after the Warrnambool County Court case​.

​The south-west man had to serve a minimum of just three years in jail before being eligible for parole.

The Director of Public Prosecutions appealed the ​original Warrnambool ​sentence, describing it as "manifestly inadequate", particularly given the girl had been forced to terminate the pregnancy.

In its written judgement, the Court of Appeal said judges were imposing "disproportionately low" sentences, compared with the "yardstick" of a maximum penalty of 25 years' jail for incest.

However, it said judges were bound to impose sentences that were consistent with those imposed by other judges.

"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 ... was manifestly inadequate."

The Court of Appeal said judges should be the ones to change sentencing practices.

"The criminal justice system can be – and should be – self-correcting,"  the court said.

In September ​2015 county court Judge Mark Dean heard a number of horrific incest and sex abuse cases during a month-long sitting in Warrnambool.

In the appeal case, a 43-year-old man, who cannot be named due to a suppression order, pleaded guilty during the sitting to two charges of incest, one charge of indecent assault and sexual penetration of a child under 16.