R v F - [2002] NSWCCA 320

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Fong [2002] NSWCCA 320

FILE NUMBER(S):
60328/02

HEARING DATE(S): 5 August 2002

JUDGMENT DATE: 09/08/2002

PARTIES:
Crown - Appellant
Kelepi FONG - Respondent

JUDGMENT OF: Meagher JA Simpson J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/3274

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
W Dawe QC - Crown
P Berman SC - Respondent

SOLICITORS:
SE O'Connor - Crown
DJ Humphreys - Respondent

CATCHWORDS:
Crown appeal
aggravated sexual assault
s61J Crimes Act 1900
asserted leniency of sentence
s22 and s44(2) Crimes (Sentencing Procedure) Act 1999
plea of guilty
circumstances of aggravation
consistency in sentencing

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
(i) appeal allowed; sentence imposed in the District Court quashed
(ii) in lieu thereof the respondent sentenced to imprisonment for thirteen years with a non-parole period of eight and a half years.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60328/01
MEAGHER JA
SIMPSON J
HOWIE J
9 August 2002

REGINA v Kelepi FONG

Judgment

MEAGHER JA: I have had the pleasure of reading in draft the judgment of Simpson J in this matter. I almost, but not quite, agree with it.
The facts surrounding Mr Fong’s rape of his stepdaughter are too appalling to repeat. They are set out in paragraph 10 of her Honour’s judgment. He has almost certainly ruined the child’s life. In these circumstances, to sentence him to no more that five years’ imprisonment is deplorable; as Simpson J said, the sentence was “manifestly inadequate”.
The argument raised by learned senior counsel for Mr Fong, Mr Berman SC, although couched in language of customary elegance, was deeply flawed. It was as follows: the trial judge should have chosen a figure in “the range”, in order that there be maintained “consistency in sentencing”; as an example of “the range”, he referred to R v Brooker NSWCCA, unreported, 21 February 1996.
In a case such as the present the trial judge has a difficult task in determining the appropriate sentence to visit on the accused. The first step he or she must take is to consider what Parliament has to say on the matter: in the present case, what Parliament has to say is that the maximum sentence such a crime attracts is 20 years’ imprisonment. Doubtless that is a penalty reserved for the most serious kind of offences of this type. The present case could hardly be more serious. There is very little, if anything, to be said in the appellant’s favour. Maybe there should be a slight discount from the maximum sentence on account of his plea of guilty, inevitable though his conviction must have been. There is not much else he can be proud of. I should place no reliance on the fact “that he has undertaken an in-custody anger management course which he found helpful”.
No, said Mr Berman. Brooker’s Case has set a “benchmark” and dictates the imposition of a 5 year sentence. That,…

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 R v F

Details

AGLC: R v F [2002] NSWCCA 320
Case: [2002] NSWCCA 320
Decision Date: 9 August 2002

CaseChat Overview and Summary

The appeal by the Crown against the sentencing of F, who had pleaded guilty to aggravated sexual assault, was heard in the Supreme Court. The central issue was whether the sentence imposed by the trial judge was lenient and inconsistent with other sentences for similar offences. The trial judge had sentenced F to a term of imprisonment with a non-parole period that the Crown considered insufficient given the nature and severity of the crime. The Crown contended that the trial judge had not adequately considered the aggravating circumstances and the need for consistency in sentencing for similar offences.

The legal issues revolved around the application of sections 61J, 22, and 44(2) of the Crimes Act 1900 and the Crimes (Sentencing Procedure) Act 1999. The Crown argued that the trial judge had erred in failing to sufficiently account for the severity of the crime and the need for consistency in sentencing. They further argued that the sentence was unduly lenient and did not reflect the gravity of the offence. The defence maintained that the sentence was appropriate given the specific circumstances and the principle of proportionality in sentencing.

The Court found that the trial judge had indeed erred in considering the sentence to be lenient and had not adequately addressed the need for consistency with other sentences for similar offences. The Court held that the trial judge had not sufficiently taken into account the aggravating circumstances of the offence, particularly the impact on the victim. Consequently, the appeal was allowed, and the matter was remitted to the District Court for resentencing. The Court emphasised the importance of considering the specific aggravating factors and the principle of consistency in sentencing when dealing with similar offences.

Orders