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GF v The Queen

GF v The Queen

Case [2005] ACTCA 46

Appeal

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GF v THE QUEEN [2005] ACTCA 46 (7 DECEMBER 2005)

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – sexual offences – sentencing – incest – whether the sentence manifestly excessive in all the circumstances - R v AJW (2001) 80 SASR 246 considered – appellant previously convicted for indecent dealings with another daughter – approach to be taken – factors affecting good character – appeal dismissed.

Crimes Act 1900 (ACT), s 62

R v AJW (2001) 80 SASR 246
The Queen v Partridge [1998] FCA 596 (Federal Court of Australia, Gallop, Mathews and Madgwick JJ, unreported, 29 May 1998)

Mill v The Queen (1988) 166 CLR 59

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 29–2005
No. SCC 241 of 2004

Judges: Gray, Connolly and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date: 7 December 2005

IN THE SUPREME COURT OF THE  )   No. ACTCA 29-2005
  )  No. SCC 241 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: GF
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:  Gray, Connolly and Madgwick JJ
Date of Order:  2 November 2005
Date of Judgment:  7 December 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE  )   No. ACTCA 29-2005
  )  No. SCC 241 of 2004
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: GF
Appellant

AND: THE QUEEN
Respondent

Judges:  Gray, Connolly and Madgwick JJ
Date of Order:  2 November 2005
Date of Judgment:  7 December 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

On 10 June 2005, the appellant was sentenced by Crispin J on two counts of incest in respect of his daughter who was 10 years and two months old at the time of the offence. The offences involved two separate acts which occurred on the one occasion. The appellant was sentenced on each count to three years and eight months imprisonment to be served concurrently and to date from the date of sentence. A non-parole period of 14 months was fixed. The appellant appeals those sentences on the ground that they were manifestly excessive in all the circumstances.

The offences

These offences took place when the appellant, who resides in Queensland, visited Canberra to see the complainant and his 11 year old son. The children’s mother and the appellant had separated some nine years previously. The appellant arranged to stay with the children in a room at Olims Hotel having obtained their mother’s agreement to this taking place. After taking the children out for the day, the children and the appellant had dinner with relatives of their mother at a restaurant near the hotel. The appellant had a significant amount to drink. After dinner, the appellant and the children returned to the appellant’s room…

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 GF v The Queen

Details

AGLC: GF v The Queen [2005] ACTCA 46
Case: [2005] ACTCA 46
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, GF, by a judge of the Supreme Court of the Australian Capital Territory, for two counts of incest involving his daughter, who was 10 years and two months old at the time of the offences. The appellant sought to appeal his sentence on the ground that it was manifestly excessive in all the circumstances.

The legal issues before the Court of Appeal were whether the sentencing judge erred in his assessment of the seriousness of the offences, the weight to be given to mitigating factors such as the appellant's psychological condition and its interaction with alcohol, and whether the sentence imposed was manifestly excessive when compared to other relevant sentencing decisions, particularly in light of previous convictions and sentences for similar offences involving another daughter.

The Court of Appeal affirmed the sentencing judge's approach, emphasising the gravity of incest offences involving children and the profound betrayal of trust inherent in such acts. The court endorsed the principle that courts must treat such offending firmly to deter others and protect children. While acknowledging the appellant's guilty plea and psychological issues as mitigating factors, the court found that these were substantially diminished by the appellant's history of predatory behaviour towards patients and the commission of similar offences against another daughter. The court also found that the previous sentence imposed in Queensland for offences against the other daughter was extraordinarily lenient. The sentencing judge's approach of considering an effective head sentence and then adjusting for time served in Queensland was deemed appropriate.

The appeal was dismissed, with the Court of Appeal ordering that the appeal be dismissed.

Orders