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FD v The Queen

FD v The Queen

Case [2011] VSCA 8 20 January 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2009 0806

FD	Appellant
	v
THE QUEEN	Respondent

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JUDGES	REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 January 2011
DATE OF JUDGMENT	20 January 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 8
JUDGMENT APPEALED FROM	The Queen v [FD] (Unreported, County Court of Victoria, Judge L C Ross, 4 September 2009)

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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to eight counts of incest, one count of attempted incest and two counts of false imprisonment involving biological daughters – Sentenced as a serious sexual offender to 16 years’ imprisonment with non-parole period of 13 years – Whether sentence manifestly excessive – Appeal allowed – Individual sentences and total effective sentence not in accordance with current Victorian sentencing practice – Caution advised regarding use of comparable cases as sentencing guides – Hudson v The Queen [2010] VSCA 332 – Appellant re-sentenced to 12 years’ imprisonment with non-parole period of nine years.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C B Boyce	Paul Vale Criminal Law
For the Respondent	Mr P Rose SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:
WEINBERG JA:

On 4 September 2007, the appellant pleaded guilty in the County Court at Melbourne to eight counts of incest, one count of attempted incest, and two counts of false imprisonment. The victims of his offending were his two young daughters, whom we shall designate A and B respectively. A was aged nine at the time of sentencing and B aged eight. A was aged between seven and nine and B between six and seven when the offending occurred.

The children were born out of a relationship that the appellant had with their mother. The appellant played no part in their upbringing. They apparently became aware that he was their father at some point prior to 2007. They sent him a card which prompted him to establish contact with them. From that point on, he occasionally visited them at their mother’s home and ultimately she permitted the children to stay overnight with the appellant at his home. It was on these occasions that these offences occurred.

Each child was sexually abused in a variety of ways. The appellant performed oral sex upon them, as well as digital penetration. In addition, he had sexual intercourse with them. The offending occurred in the presence of both children. On one occasion, the appellant used handcuffs to secure the children’s wrists to the bed in which they were to sleep. He then proceeded to have sexual intercourse with them in this position.

In his interview with the police, the appellant said that any sexual behaviour on his part had been initiated by the children, who expressed curiosity about sexual matters. The appellant initially denied having sexually penetrated A, but conceded that he had attempted to do so. As the interview progressed, he made further concessions regarding his inappropriate sexual behaviour.

The sentencing judge correctly described the…

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 The Queen

Details

AGLC: FD v The Queen [2011] VSCA 8
Case: [2011] VSCA 8
Decision Date: 20 January 2011

CaseChat Overview and Summary

FD appealed against his sentence following a conviction for multiple serious sexual offences against his biological daughters. The Victorian Court of Appeal considered whether the original sentence of 16 years’ imprisonment with a non-parole period of 13 years was manifestly excessive. The court needed to determine if the individual sentences for each offence and the total effective sentence complied with current Victorian sentencing practices, particularly in relation to similar cases.

The court examined the principles set out in Hudson v The Queen, which emphasise the importance of consistency and proportionality in sentencing. It identified that the original sentence was not in accordance with current sentencing practices, as it did not appropriately reflect the seriousness of each offence and the overall culpability of the offender. The court cautioned against the over-reliance on comparable cases as the sole guide for sentencing, stressing the need for individualised sentencing based on the unique circumstances of each case. The appeal was allowed on the basis that the original sentence was manifestly excessive and not aligned with current sentencing standards.

Upon allowing the appeal, the Court of Appeal re-sentenced FD to 12 years’ imprisonment with a non-parole period of nine years. This re-sentence was deemed to be proportionate to the offences committed, taking into account the totality of the offending and the principles of sentencing proportionality and consistency. The decision underscores the importance of tailoring sentences to the specific facts and circumstances of each case, rather than relying solely on precedent.

Orders