Fridey v The Queen - [2014] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0239

NEVILLE JOHN FRIDEY

Applicant

THE QUEEN

Respondent

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JUDGES:	WEINBERG, WHELAN and BEACH JJA
WHERE HELD:	WARRNAMBOOL
DATE OF HEARING:	23 July 2014
DATE OF JUDGMENT:	31 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 271
JUDGMENT APPEALED FROM:	DPP v Fridey (Unreported, County Court of Victoria, Judge Hampel, 29 July 2013)

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Guilty plea – Sexual offences against a child aged between 7 and 12 – Whether total effective sentence of 10 years’ imprisonment and non-parole period of six years and six months manifestly excessive – Whether trial judge erred in application of totality principle – Applicant already serving sentence of 10 years and six months’ imprisonment, with non-parole period of seven years and six months, imposed in 2008, on appeal, for sexual offending against three children – Applicant in custody for earlier offending since 20 October 2005 – Effect of current sentence equivalent to total effective sentence of 17 years nine months and 20 days with non-parole period of 14 years three months and 20 days – Sentence excessive – Appeal allowed – Applicant re-sentenced to five years’ imprisonment with non-parole period of two years and six months – Sentence to commence from date pronounced – No pre-sentence detention – Equivalent to total effective sentence of 14 years and 9 days with non-parole period of 11 years six months and 10 days.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA

WHELAN JA
BEACH JA:

The applicant, now aged 64, pleaded guilty in the County Court at Geelong to a number of sexual offences, and was sentenced, on 8 August 2013, as set out in the table below:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Indecent assault [Crimes Act 1958 s 44(1)] 5 years 2 years 12 months

2 Sexual penetration of a child under 10 [Crimes Act 1958 s 47(1)] 20 years 5 years Base

3 Indecent assault 5 years 18 months 6 months

4 Sexual penetration of a child under 10 20 years 5 years 12 months

5 Sexual penetration of a child under 16 [Crimes Act 1958 s 45(1)] 10 years 2 years 6 months 9 months

6 Sexual penetration of a child under 16 10 years 4 years 21 months

Total effective sentence: 10 years’ imprisonment

Non-parole period: 6 years 6 months

Pre-sentence detention declared: Nil

6AAA statement: 15 years’ imprisonment, with a non-parole period of 12 years

The applicant now seeks leave to appeal against sentence, by notice filed on 5 December 2013, upon the following two grounds:

1.The total effective sentence and non-parole period are manifestly excessive in light of the plea of guilty, the applicant’s age and ill-health, the delay since the offending and the fact that at the time of sentencing 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 Fridey v The Queen

Details

AGLC: Fridey v The Queen [2014] VSCA 271
Case: [2014] VSCA 271
Decision Date: 31 October 2014

CaseChat Overview and Summary

The case of Fridey v The Queen involved an application for leave to appeal against a sentence imposed on the applicant following a guilty plea to several sexual offences against a child aged between 7 and 12. The High Court of Australia was tasked with determining whether the total effective sentence of 10 years’ imprisonment and a non-parole period of six years and six months was manifestly excessive, as well as whether the trial judge had erred in applying the totality principle. The applicant had already been serving a sentence of 10 years and six months’ imprisonment, with a non-parole period of seven years and six months, for sexual offending against three children. He had been in custody for earlier offending since 20 October 2005.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether there was an error in the application of the totality principle. The court considered the principle that the totality of a person's punishment should not be manifestly excessive in relation to the offence. In this case, the court observed that the current sentence, when combined with the sentence already being served, amounted to a total effective sentence of 17 years nine months and 20 days with a non-parole period of 14 years three months and 20 days. The court found that the sentence was indeed excessive. The court also noted that the trial judge had not adequately considered the totality principle when imposing the sentence.

The High Court found that the sentence was manifestly excessive and that the trial judge had erred in the application of the totality principle. The appeal was allowed, and the applicant was re-sentenced to five years’ imprisonment with a non-parole period of two years and six months. The sentence was to commence from the date it was pronounced, with no pre-sentence detention. This resulted in an equivalent total effective sentence of 14 years and 9 days with a non-parole period of 11 years six months and 10 days. This re-sentencing was deemed to be proportionate and in accordance with the principles of justice and the law.

Orders