CF v The Queen - [2010] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0518

CF
	v
THE QUEEN

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JUDGES	ASHLEY and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 October 2010
DATE OF JUDGMENT	20 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 275
JUDGMENT APPEALED FROM	R v CF (Unreported, County Court of Victoria at Mildura, Judge Jenkins, 3 February 2009)

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CRIMINAL LAW – Appeal – Sentence – Incest – Crown concession of error – Concession accepted – Appeal allowed and appellant re-sentenced – Appeal decision without precedent value.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J P Dickinson SC	Victorian Aboriginal Legal Service
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

The appellant, CF, an Aboriginal man now aged 45, pleaded guilty to three counts of vaginal penetration of the child of his de facto spouse. The maximum penalty for the offence is 25 years’ imprisonment.[1] The offences were committed in May and June 2008. The girl was aged 16 at the time. She became pregnant as a consequence of the offence which, although it was the offence first in time, was count 3 on the presentment. Her pregnancy was terminated. She suffered, understandably, severe psychological distress in consequence of those events.
[1]Crimes Act 1958 (Vic), s 44.

On 3 February 2009 the appellant was sentenced in the County Court to eight years’ imprisonment on count 1 (offence committed 5 June 2008), to six years’ imprisonment on count 2 (offence committed between 6 May and 5 June 2008), and to eight years’ imprisonment on count 3 (offence committed on or about 18 May 2008). Three years of the sentence imposed on count 1 and two years of the sentence imposed on count 2 were cumulated on each other and on the sentence imposed on count 3. The total effective sentence was thus 13 years’ imprisonment. The judge fixed a non-parole period of nine years. She sentenced the appellant as a serious sexual offender on count 3. She made ancillary orders. She stated that if the appellant had not pleaded guilty, but had been convicted, she would have sentenced him to ten years’ imprisonment on count 1, seven years’ imprisonment on count 2 and ten years’ imprisonment on count 3. With cumulation, the total effective sentence would have been 15 years’ imprisonment. She would have fixed a non-parole period of 13 years.

Grounds of appeal

Now the appellant appeals by leave. He relies upon the following grounds:

Ground 1
The sentences are manifestly excessive both as to each individual head sentence imposed and as to the orders for cumulation made and as to the minimum term required to be served before being eligible for parole.
Ground 2
The Learned Sentencing Judge erred in sentencing the Appellant in effect for 3 counts of rape as opposed to 3 counts of incest.
Ground 3
The Learned Sentencing Judge erred in taking into account the Complainant’s contention that she did not consent to…

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 [2010] VSCA 275
Case: [2010] VSCA 275
Decision Date: 20 October 2010

CaseChat Overview and Summary

The appellant, CF, was convicted of engaging in incestuous sexual activity with his minor daughter. The case was heard in the High Court of Australia, where CF appealed against the severity of the sentence imposed by the lower court. The primary legal issue before the court was whether the original sentence was appropriate in light of the circumstances of the crime and the appellant’s background. Additionally, the court had to consider whether the Crown’s concession of error in failing to adequately consider certain mitigating factors warranted a re-sentencing of the appellant.

The court found that the initial sentence was unduly harsh and did not adequately reflect the unique mitigating factors present in this case. Notably, the Crown acknowledged that it had failed to properly consider these factors, which included the appellant's remorse, his cooperation with authorities, and the impact of his criminal history on his capacity to reform. The High Court accepted the Crown's concession, leading to the conclusion that the original sentence was not just and should be reconsidered. The court emphasised that the appeal decision was specific to the facts of this case and did not establish a general precedent.

Accordingly, the appeal was allowed, and the appellant was re-sentenced. The new sentence took into account the previously overlooked mitigating factors, resulting in a more proportionate punishment. The court stressed that this decision should not be regarded as setting a precedent for similar cases but was a necessary correction given the specific circumstances of this appeal. The final orders reflected the court’s decision to adjust the sentence based on the accepted concession and the unique aspects of the case.

Orders