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FV v The Queen

FV v The Queen

Case [2006] NSWCCA 237 17 August 2006

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CITATION: FV v Regina [2006] NSWCCA 237

HEARING DATE(S): 26/07/06

JUDGMENT DATE:
17 August 2006

JUDGMENT OF: McClellan CJ at CL at 1; Kirby J at 2; Hoeben J at 77

DECISION: (1) Leave to appeal granted.; (2) Appeal allowed.; (3) Sentences imposed by his Honour in respect of counts 1 and 3 confirmed.; (4) Sentence imposed by his Honour in respect of count 2 be quashed and, in lieu thereof, the applicant sentenced to a term of imprisonment of 6 years commencing on 31.1.06 and expiring on 30.1.12, with a non parole period of 3 years commencing on 31.1.06 and expiring 30.1.09.

CATCHWORDS: Criminal Practice & Procedure - aggravated sexual intercourse and attempt - daughter - agreed statement - complainant's statement and other material tendered - whether judge able to go outside agreed statement - whether sentence excessive - sentencing for attempt.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED: R v De Simoni (1981) 147 CLR 383
R v H [2005] NSWCCA 282
R v Uzabeaga [2000] NSWCCA 381
Chow v DPP (1992) 28 NSWLR 593
GAS v The Queen (2004) 217 CLR 198
R v Bakewell (CCA (NSW), unreported, 27.6.96)
R v Palu [2002] NSWCCA 381
R v Hammoud (2000) 118 A Crim R 66
R v EGC [2005] NSWCCA 392
R v Trevenna [2004] NSWCCA 43
R v George [2004] NSWCCA 247
T v R (1990) 47 A Crim R 29
Taouk v R (1992) 65 A Crim R 387R v Noble & Verheyden (1994) 73 A Crim R 379
R v Pellew [2004] NSWCCA 434

PARTIES: FV (App)
Regina (Resp)

FILE NUMBER(S): CCA 2006/824

COUNSEL: R S Toner SC/G R Heathcote (App)
Ms J A Girdham (Resp/Crown)

SOLICITORS: Proctor & Associates (App)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3038

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 10/10/05

2006/824

McCLELLAN CJ at CL
KIRBY J
HOEBEN J
Thursday 17 August 2006

FV v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Kirby J.

2 KIRBY J: This is an application for leave to appeal against sentence. "FV" (the applicant) presented for trial at the Campbelltown District Court on 25 July 2005 in respect of a number of alleged sexual offences. The complainant was his daughter (who will be given the pseudonym "Theresa"). Before the matter was called on, there were discussions between the Crown and counsel for FV. As a consequence, the Crown presented a fresh indictment, which may be summarised as follows:

Count 1

Crimes Act

Count 2

Crimes Act

Count…

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 FV v The Queen

Details

AGLC: FV v The Queen [2006] NSWCCA 237
Case: [2006] NSWCCA 237
Decision Date: 17 August 2006

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant against his conviction and sentence for aggravated sexual intercourse and attempted aggravated sexual intercourse. The appellant, the father of the complainant, was convicted of the offences after an agreed statement of facts was entered into, whereby it was agreed that the appellant had sexually assaulted his daughter. The trial judge had sentenced the appellant to imprisonment for a total of eight years, with a non-parole period of five years and three months. The appellant argued that the sentence was excessive and that the trial judge had erred in going outside the agreed statement of facts in sentencing.

The court considered whether the trial judge was able to go outside the agreed statement of facts in sentencing and whether the sentence was excessive. The court held that the trial judge was not restricted to the agreed statement of facts in sentencing and was entitled to consider all relevant material, including the complainant's statement and other material tendered. The court further held that the sentence was not excessive, taking into account the gravity of the offences and the need for general and specific deterrence.

The court noted that the offences were of a serious nature and involved a breach of the trust between a parent and child. The court considered the impact of the offences on the complainant and her family and the need to protect the community. The court also noted that the appellant had no previous convictions and had shown some remorse. The court concluded that the sentence was appropriate and reflected the seriousness of the offences.

The appeal was dismissed and the conviction and sentence were upheld.

Orders