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8
Court of Criminal Appeal 17 August 2006

FV v Regina

[2006] NSWCCA 237

Sexual offencesDomestic & family violence
CRIMINAL PRACTICE & PROCEDURE DAUGHTER AGREED STATEMENT WHETHER SENTENCE EXCESSIVE SENTENCING FOR ATTEMPT.

Citation: FV v Regina [2006] NSWCCA 237
Court: New South Wales Court of Criminal Appeal
Date: 17 August 2006
Judges: McClellan CJ at CL, Kirby J, Hoeben J

Background

The appellant (referred to by the pseudonym "FV") pleaded guilty in the Campbelltown District Court to three counts of sexual offences against his daughter: aggravated indecent assault when she was 12 years old, aggravated attempted sexual intercourse when she was 15, and aggravated sexual intercourse when she was 15. The offences occurred between 1997 and 2001, with the latter two counts taking place shortly after the death of the complainant's mother.

Before sentencing, the parties had agreed upon a statement of facts. Despite that agreement, the sentencing judge (Marien DCJ) also received the complainant's own statement and other material in the Crown brief, which went beyond the agreed facts. The original sentences produced an effective term of 8 years and 3 months, with a non-parole period of 5 years and 6 months.

FV sought leave to appeal against sentence on seven grounds, challenging both the sentencing judge's use of material outside the agreed facts and the overall length of the sentences imposed.

  • Whether the sentencing judge was entitled to rely on material, including the complainant's statement, that went beyond the agreed statement of facts
  • Whether findings of fact adverse to the appellant were open on the evidence before the court
  • Whether, on a plea to attempted sexual intercourse, the sentencing judge could take into account evidence that penetration in fact occurred, or that the complainant suffered pain
  • Whether the accumulation of sentences across the counts was appropriate
  • Whether the sentencing judge's assessment of objective seriousness was correct
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and found error in the sentence imposed for count 2. Kirby J (with whom McClellan CJ at CL and Hoeben J agreed) conducted the detailed analysis. The court examined the circumstances in which a sentencing judge may go beyond an agreed statement of facts, including what material had been tendered and whether objection had been raised.

On the question of sentencing for the attempt offence (count 2), the court addressed the principle, drawn from cases including R v De Simoni, that a sentencing court cannot punish for a more serious offence than the one to which the offender pleaded guilty. Taking into account, as an aggravating circumstance, that penetration actually occurred would effectively sentence the appellant for the completed offence rather than the attempt. This aspect of the sentencing judge's approach was found to be in error.

The court accepted that the offences were serious, noting the gross breach of parental trust and the vulnerability of the complainant, particularly given her mother's recent death. It also acknowledged that the same period of grief and vulnerability applied, in a different sense, to the appellant, though that was plainly no excuse for the offending. Weighing all relevant factors, including Judicial Commission statistics and comparable cases, the court concluded that the sentence for count 2 was excessive. The starting point of approximately 9.7 years before any guilty plea discount was not warranted on the facts.

The court resentenced FV on count 2 only, reducing that term to 6 years with a non-parole period of 3 years, and confirmed the sentences on counts 1 and 3 without alteration.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on counts 1 and 3 confirmed
  • Sentence on count 2 quashed and replaced with 6 years' imprisonment commencing 31 January 2006 and expiring 30 January 2012, with a non-parole period of 3 years commencing 31 January 2006 and expiring 30 January 2009

Key Takeaways

  • Where a sentencing proceeding is conducted on the basis of an agreed statement of facts, care must be taken before the sentencing court goes beyond that agreed material, particularly when making findings adverse to the offender.
  • A conviction for an attempt offence, under the principle in R v De Simoni, limits what a sentencing court may treat as an aggravating circumstance: facts constituting a more serious, completed offence cannot be used to increase the sentence beyond what is appropriate for the attempt.
  • The Court of Criminal Appeal confirmed that the death of a close family member shortly before offending may form part of the background context for sentencing purposes, without constituting an excuse or justification for the conduct.
  • Upholding only the ground relating to count 2, the Court reduced the total effective sentence from 8 years and 3 months (non-parole 5 years 6 months) to 7 years and 3 months (non-parole 4 years and 3 months).
  • In cases involving intrafamilial sexual offending, the breach of parental trust and the victim's vulnerability remain significant factors in the assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61M, 344A
- Evidence Act 1995 (NSW)

Cases:
- R v De Simoni (1981) 147 CLR 383
- GAS v The Queen (2004) 217 CLR 198
- R v H [2005] NSWCCA 282
- R v EGC [2005] NSWCCA 392
- R v Uzabeaga [2000] NSWCCA 381
- Chow v DPP (1992) 28 NSWLR 593
- R v Palu [2002] NSWCCA 381
- R v Hammoud (2000) 118 A Crim R 66
- R v Trevenna [2004] NSWCCA 43
- R v George [2004] NSWCCA 247
- R v Pellew [2004] NSWCCA 434
- R v Bakewell (CCA (NSW), unreported, 27 June 1996)
- R v Noble & Verheyden (1994) 73 A Crim R 379
- T v R (1990) 47 A Crim R 29
- Taouk v R (1992) 65 A Crim R 387