FD v R

Case [2013] NSWCCA 139 12 June 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: FD v R [2013] NSWCCA 139
Hearing dates: 9 April 2013
Decision date: 12 June 2013
Before: Simpson J at [1]
Harrison J at [3]
Bellew J at [4]
Decision:
1.Leave to appeal granted.
2.Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence - multiple offences of aggravated indecent assault and sexual intercourse without consent - where medical evidence that the applicant had brain damage leading to cognitive deficit at the time of his offending - where sentencing judge accepted medical opinion led in applicant's case but proceeded to make findings inconsistent with that acceptance of opinion - where error established - whether any other sentence warranted in law - where sentencing judge erred by incorrectly stating the standard non-parole period applicable to some of the offences - where applicant the paternal grandfather of the two victims - where sentencing judge erred in the applicant's favour by ascribing an additional discount on account of remorse over and above the discount on account of the utilitarian value of the pleas of guilty which had been entered - where sentencing judge erred in failing to have regard to the applicant's brain damage as a factor which reduced his moral culpability and rendered general deterrence of less significance - where offending involved gross breach of trust perpetrated on two young victims over a long period of time - where sentencing judge imposed an aggregate sentence comprising a non parole period of 4 years with a balance of term of 4 years - no other sentence warranted in law - appeal dismissed
Legislation Cited: Crimes Act 1900 NSW
Crimes (Sentencing Procedure) Act 1999 NSW
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 NSW
Crimes (Sentencing Procedure) Amendment Act NSW 2007
Criminal Appeal Act NSW 1912
Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Muldrock v R (2011) 244 CLR 120
R v Anderson [1981] VR 155; (1980) 2 A Crim R 379
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v Israil (2002) NSWCCA 255
R v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333
R v Simpson (2001) 53 NSWLR 704
Category: Principal judgment
Parties: FD (Applicant)
Crown (Respondent)
Representation: Mr J Agius SC & Mr G Kennedy (Applicant)
Mr P G Ingram SC (Respondent)
Gerard Charles Kelly (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/224725
Publication restriction: Nil
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-07-20 00:00:00

Before:

Judge Charteris SC

Judgment

SIMPSON J: I agree with the orders proposed by Bellew J, and, subject to the following, with his Honour's reasons.

In my opinion, the error in relation to the applicant's medical condition was of considerable significance and would ordinarily warrant some reduction in the sentence imposed. However, that error has to be balanced against two other errors, also significant, that favoured the applicant - the error (into which…

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 FD v R

Details

AGLC: FD v R [2013] NSWCCA 139
Case: [2013] NSWCCA 139
Decision Date: 12 June 2013

CaseChat Overview and Summary

The case of FD v R involved the applicant, who was convicted of multiple offences of aggravated indecent assault and sexual intercourse without consent. The victims were two young children, and the applicant was their paternal grandfather. The applicant argued that the sentencing judge made several errors in the sentencing process, including incorrectly stating the standard non-parole period for some of the offences, ascribing an additional discount on account of remorse over and above the discount for the pleas of guilty, and failing to consider the applicant's brain damage as a factor that reduced his moral culpability. The applicant also argued that the sentence imposed was manifestly inadequate. The court of appeal examined the sentencing judge's decision and found that there were indeed errors in the process. However, the court concluded that no other sentence was warranted in law.

The legal issues before the court were whether the sentencing judge's errors warranted a new sentencing hearing, and if not, whether the sentence imposed was manifestly inadequate. The court found that while the sentencing judge had made errors in the process, the sentence imposed was still appropriate given the circumstances of the case. The court noted that the applicant's brain damage did reduce his moral culpability, but this did not outweigh the seriousness of the offences committed against two young victims over a long period of time. The court also found that the applicant's remorse was properly taken into account in the sentence imposed.

The court of appeal concluded that the sentencing judge's errors did not warrant a new sentencing hearing as the sentence imposed was still appropriate. The court found that the sentence imposed, which comprised a non-parole period of 4 years with a balance of term of 4 years, was not manifestly inadequate. The court noted that the applicant's brain damage did reduce his moral culpability, but this did not outweigh the seriousness of the offences committed. The court also found that the applicant's remorse was properly taken into account in the sentence imposed. Therefore, the appeal was dismissed.

Orders