CF v The Queen

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.