CF v The Queen - [2012] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2007 0939A

CF
	Appellant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE and HARPER JJA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2012
DATE OF JUDGMENT:	23 February 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 22
JUDGMENT APPEALED FROM:	R v [FC and CGT] (Unreported, County Court of Victoria, Judge Wilmoth, 18 December 2007)

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CRIMINAL LAW – Sentence – Eighteen counts of incest, 19 counts of committing an indecent act with, or in the presence of, a child under 16 and one count of counselling or procuring child under 16 years to take part in act of sexual penetration – Offences committed against the appellant’s two children in conjunction with, or at the behest of, the appellant’s husband over a period of four years – Plea of not guilty – Total effective sentence of 12 years’ imprisonment with a non-parole period of 8 years – Error by the sentencing judge in failing to have proper regard to the correct maximum for the offence of counselling or procuring child under 16 years to take part in act of sexual penetration – Whether sentencing judge, in fixing the individual sentences, the head sentence and the non-parole period, failed to give proper weight to the evidence of the appellant’s husband as the dominating force in her offending – R v Gorladenchearu [2011] VSCA 432 applied – Appeal allowed in part.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Glynn	Galbally & O’Bryan
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
HARPER JA
HOLLINGWORTH AJA:

Background

Following a trial which began on 8 October 2007, the appellant was convicted of 18 counts of incest and 19 of committing an indecent act with, or in the presence of, a child under 16. The final count on the presentment, count 38, also resulted in a conviction. It was described in the presentment as that of procuring and counselling a child to take part in an act of sexual penetration. In fact, however, two children were involved. They were her son (‘C1’) and her daughter (‘C2’), who at the behest of their mother and her husband, their stepfather, performed oral sex on each other.

Following her conviction, the appellant was on 18 December 2007 sentenced to a total effective sentence of 12 years’ imprisonment. Her Honour ordered that the appellant serve a minimum of 8 years before becoming eligible for parole.

The offences, maximum sentences, individual sentences and orders for cumulation are set out below in the Table below.

Count

Offence

Maximum Penalty

Individual Sentence

Cumulation

Count 1

Indecent act with or in the presence of a child under 16

10 years’ imprisonment

4 years’ imprisonment

18 months

Count 2

Indecent act with or in the presence of a child under 16

10 years’ imprisonment

4 years’ imprisonment

Count 3

Indecent act with or in the presence of a child under 16

10 years’ imprisonment

4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CF v The Queen

Details

AGLC: CF v The Queen [2012] VSCA 22
Case: [2012] VSCA 22
Decision Date: 23 February 2012

CaseChat Overview and Summary

The appellant, CF, was convicted by a jury in the Supreme Court of Victoria of eighteen counts of incest, nineteen counts of committing an indecent act with, or in the presence of, a child under 16, and one count of counselling or procuring a child under 16 years to take part in an act of sexual penetration. The offences were committed against the appellant's two children in conjunction with, or at the behest of, her husband over a period of four years. The appellant pleaded not guilty to all charges. The primary judge sentenced the appellant to a total effective sentence of 12 years' imprisonment, with a non-parole period of 8 years. The appellant appealed against the sentence on the grounds that the sentencing judge had failed to properly consider the correct maximum penalty for the offence of counselling or procuring a child under 16 years to take part in an act of sexual penetration and had not adequately weighed the evidence of the appellant's husband as the dominating force in her offending.

The court was required to determine whether the sentencing judge had erred in failing to have proper regard to the correct maximum penalty for the offence of counselling or procuring a child under 16 years to take part in an act of sexual penetration, as well as whether the judge had failed to give proper weight to the evidence of the appellant's husband as the dominating force in her offending. The court also needed to decide whether the sentencing judge had adequately considered the totality of the offending and the appropriate sentence for the appellant.

The court held that the sentencing judge had erred in failing to properly consider the correct maximum penalty for the offence of counselling or procuring a child under 16 years to take part in an act of sexual penetration. The court noted that the maximum penalty for this offence was 20 years' imprisonment, not the 15 years' imprisonment that the sentencing judge had applied. The court further found that the sentencing judge had failed to give proper weight to the evidence of the appellant's husband as the dominating force in her offending. The court held that the appellant's husband had been the driving force behind the offending and that the appellant's role had been more passive. The court found that the sentencing judge had not adequately considered the totality of the offending and the appropriate sentence for the appellant. The court allowed the appeal in part, setting aside the sentence and remitting the matter to the Supreme Court for re-sentencing.

The court ordered that the case be remitted to the Supreme Court for re-sentencing, with directions that the sentencing judge have proper regard to the correct maximum penalty for the offence of counselling or procuring a child under 16 years to take part in an act of sexual penetration and give proper weight to the evidence of the appellant's husband as the dominating force in her offending. The court also directed that the sentencing judge consider the totality of the offending and the appropriate sentence for the appellant.

Orders