Court of Criminal Appeal
New South Wales
Case Title: FB v R Medium Neutral Citation: [2014] NSWCCA 282 Hearing Date(s): 27 August 2014 Decision Date: 01 December 2014 Before: Leeming JA at [1]
Adams J at [2]
Fullerton J at [18]Decision: Appeal dismissed.
Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sentence affected by Muldrock error - whether any lesser sentence is warranted - appeal following increase of sentence - nature of appeal Legislation Cited: Crimes Act 1900 (NSW), s 61J
Crimes (Appeal and Review) Act 2001 (NSW), s 78, s 79(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(2), Div 1A Pt 4
Criminal Appeal Act 1912 (NSW), s 6(3), s 51CCases Cited: FB v R; R v FB [2011] NSWCCA 217
Louizos v R [2014] NSWCCA 242
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168Category: Principal judgment Parties: FB (Appellant)
Regina (Crown)Representation - Counsel: Counsel:
Mr D Barrow (Appellant)
Ms S Dowling SC (Crown)- Solicitors: Solicitors:
Heffernan Legal (Appellant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2009/227215 Decision Under Appeal - Court / Tribunal: District Court - Before: Lakatos DCJ - Date of Decision: 11 November 2010 - Court File Number(s): 2009/227215
JUDGMENT
LEEMING JA: I agree with Adams J.
ADAMS J:
Introduction
On 23 July 2010 the appellant was convicted following a trial by judge alone of the offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) for which a maximum penalty is prescribed of 20 years imprisonment and a standard non-parole period of 10 years applies. The particulars of the charge allege that, between 16 August 2006 and 31 August 2006 the appellant had sexual intercourse with SE without her consent and knowing she was not consenting in circumstances of aggravation, namely at the time SE was 14 years of age and was under his authority as SE's teacher and the headmaster of the school she was attending. The primary judge sentenced the appellant to imprisonment for six years and six months with a non-parole period of four years to commence on 9 February 2010. (For convenience I refer to this as the earlier offence.)
At the time of this sentence, the appellant was already serving a sentence imposed by another judge on 20 November 2009 for five offences committed between 10 and 14 December 2007 to which the appellant had pleaded guilty, involving sexual intercourse with a 16 year old girl who was under his special care in that he was the principal of the school the victim attended (the "later offences"). These occurred some 16 months after the earlier offence but they had been earlier disclosed to the authorities and the consequent proceedings were concluded before those relating to SE. The first of the later offences involved an act of cunnilingus and the four others involved penile/vaginal intercourse with the same victim. In respect…
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Details
- AGLC
- FB v The Queen [2014] NSWCCA 282
- Case
- [2014] NSWCCA 282
- Decision Date
CaseChat Overview and Summary
This appeal arises from the appellant's conviction for a sexual assault on a minor, specifically for engaging in sexual intercourse with a child under the age of 16. The case has proceeded through various judicial stages, culminating in the High Court of Australia. The primary dispute is over the sentence imposed by the trial judge, which the appellant contends is manifestly inadequate. The Court of Criminal Appeal increased the sentence, leading to this further appeal. The High Court must determine whether the Court of Criminal Appeal erred in law by imposing a sentence that is still inadequate or if the increased sentence is appropriate given the circumstances of the case.
The central legal issue before the court is whether the sentence imposed by the Court of Criminal Appeal is adequate, considering the appellant's criminal history, the nature of the offence, and the risk of recidivism. The court must also consider the appellant's long-standing severe depressive illness and its impact on his behaviour and prospects for rehabilitation. Another critical issue is whether the appellant's subsequent criminal conduct, which indicates a lack of genuine remorse, affects the appropriate sentence.
The court reviewed the extensive factual background of the case, noting the appellant's manipulative behaviour leading up to the offence and his subsequent criminal activities. The primary judge had found the original sentence manifestly inadequate, and the Court of Criminal Appeal agreed, increasing the sentence. The High Court found that the Court of Criminal Appeal's decision was correct. The court emphasised the objective seriousness of the offence and the appellant's subjective features, including his need for intensive treatment and the moderate risk of recidivism. The court concluded that the increased sentence was warranted given the appellant's criminal conduct and the need to ensure public safety.
The High Court dismissed the appeal, affirming the sentence imposed by the Court of Criminal Appeal. The court found no error in the Court of Criminal Appeal's decision and determined that the increased sentence was appropriate given the circumstances of the case.
The central legal issue before the court is whether the sentence imposed by the Court of Criminal Appeal is adequate, considering the appellant's criminal history, the nature of the offence, and the risk of recidivism. The court must also consider the appellant's long-standing severe depressive illness and its impact on his behaviour and prospects for rehabilitation. Another critical issue is whether the appellant's subsequent criminal conduct, which indicates a lack of genuine remorse, affects the appropriate sentence.
The court reviewed the extensive factual background of the case, noting the appellant's manipulative behaviour leading up to the offence and his subsequent criminal activities. The primary judge had found the original sentence manifestly inadequate, and the Court of Criminal Appeal agreed, increasing the sentence. The High Court found that the Court of Criminal Appeal's decision was correct. The court emphasised the objective seriousness of the offence and the appellant's subjective features, including his need for intensive treatment and the moderate risk of recidivism. The court concluded that the increased sentence was warranted given the appellant's criminal conduct and the need to ensure public safety.
The High Court dismissed the appeal, affirming the sentence imposed by the Court of Criminal Appeal. The court found no error in the Court of Criminal Appeal's decision and determined that the increased sentence was appropriate given the circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
It is unnecessary to revisit the Muldrock issue. The question is whether, error being conceded, a lesser sentence is warranted.The facts There was no dispute in the earlier proceedings as to the primary judge's findings. His Honour said -"In August 2006 the complainant was having difficulties in her relationship with her family and particularly her mother. As a result of these difficulties her parents consulted the prisoner who was I say the school principal at the time. The prisoner suggested that the complainant spend some time with him and his family as a time out. Once again in my view at this stage there was much more than altruism in that offer by the prisoner. In my opinion that supports the fact that he was taking steps to spend as much time as he could with the complainant, probably with a sexual undertone as well. The complainant spent some two weeks with the accused and his family between 16 and 31 August 2006. On 19 August 2006 the prisoner took the complainant flying, out of Coffs Harbour and also purchased a gift which was for the complainant to give to her sister in relation to the latter's birthday. In my opinion this was also conduct by the prisoner in which he was attempting to ingratiate himself with the complainant by firstly impressing her as I infer from taking her flying and next providing money, not huge amounts, for the purchase of gifts.In the period leading up to the sexual assault the prisoner attempted close physical contact with the complainant by hugging her when they were watching television. Immediately preceding the offence he gave her two tablets which he represented were Panadol and which had the effect of causing her to go to sleep. When she awoke she found herself in her pyjamas and the prisoner on top of her. It was her evidence which I accepted in the trial beyond reasonable doubt and do for the purpose of sentencing, that his penis was inside her and she was screaming out for him to stop. She observed that he had his shirt on and the complainant thought he had some pants around his ankles. She believed that he was not wearing a condom during this process. It was her evidence that he held her down by her arms, but otherwise no further force was used by him.The complainant remained at the house after these events for a period of two to three days during which period the prisoner attempted no further sexual contact with her."Subjective features These, also unchallenged in the present appeal, are taken from the previous judgment (at [140]-[147]). The appellant was dealt with on the basis that the offence was his major criminal offence, the offences for which he was serving his sentence at the time having occurred in the following year. The appellant's long standing symptoms of a "severe depressive illness" did not contribute to the commission of the offence against SE, amongst other reasons, because his psychiatrist, Dr Watson-Munro, was unable to say whether the appellant had been suffering any psychological symptoms at the time. Nevertheless, he did have a long standing depressive illness of a severe nature which was, at the time of sentence, still affecting him. Dr Watson-Munro, who expressed the opinion that "the prisoner is clearly a paedophile", thought he needed more intensive treatment than he had received at the time of the sentence hearing, in this respect the primary judge noting that there were programs which might be of considerable assistance in his rehabilitation. Dr Watson-Munro was, as the Court described it, "wary of expressing a definitive opinion on the risk of recidivism" but, if he had a "long commitment to treatment", the risk of recidivism was "moderate". As the Court observed, "the sentencing judge accepted this proposition, namely that the need for post-release treatment and its prospects of decreasing the risk of recidivism, required a lengthy non-parole period enabling supervision." Of course, it also meant that the risk of reoffending was a live and significant issue.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is clear, from the appellant's subsequent criminal conduct, that whatever remorse he might have had after the commission of his offence, it did not affect his behaviour. The sentencing judge rightly regarded the appellant's prospects of rehabilitation with "guarded optimism, only if he continues with the treatment which he has been given". His Honour went on to express some scepticism of his long term prospect in this regard given the wealth of learning revealing the difficulty of either eradicating or controlling behaviour of the kind exhibited by the appellant. To this I would add the subsequent offending.Conclusion In my respectful view, the Court of Criminal Appeal was correct in concluding that the sentence imposed by the primary judge was manifestly inadequate. Considering the objective seriousness of the offence, together with the appellant's subjective features, bearing in mind as yardsticks, the standard non-parole period and (less so) the maximum term prescribed for the offence, I am not persuaded that any lesser sentence than that substituted by the Court of Criminal Appeal is warranted in law. Accordingly, I would dismiss the appeal. FULLERTON J: I agree with Adams J.
Ratio Decidendi
Legal Principle Established
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