R v Fereiro - [2006] QCA 10

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fereiro [2006] QCA 10

PARTIES:

R
v
FEREIRO, David Jude
(applicant)

FILE NO/S:

CA No 331 of 2005
DC No 1910 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

6 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2006

JUDGES:

McMurdo P, Keane JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to one count of recording an indecent visual image and two counts of indecent dealing - where applicant a podiatrist - where complainant a 15 year old female patient of applicant - where complainant and her mother initially accepted behaviour due to applicant's profession - where applicant's conduct had significant impact on complainant and her mother - where applicant lost marriage, will likely lose livelihood and has suffered public shaming - where learned sentencing judge placed importance on betrayal of trust - where applicant sentenced to 18 months imprisonment suspended after eight months for an operational period of three years - whether sentence imposed manifestly excessive

R v Moffat [2003] QCA 95; CA No 439 of 2002, 11 March 2003, cited
R v Pham [1996] QCA 3; CA No 435 of 1995, 6 February 1996, cited

COUNSEL:

R A East for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 5 August 2005 the applicant pleaded guilty to one count of recording an indecent visual image and two counts of indecent dealing. The offences occurred between 1 January 2004 and 1 August 2004.

On 11 November 2005 the applicant was sentenced to 18 months imprisonment suspended after eight months for an operational period of three years. The applicant seeks leave to appeal against the severity of this sentence on the ground that the sentence was manifestly excessive.

As to the circumstances of the offences, the applicant was a self-employed podiatrist who shared rooms with a physiotherapist. He secretly filmed women in various stages of undress in the physiotherapist's massage room which adjoined his own.

As to the first count, in contravention of s 210(1)(f) Criminal Code, the applicant secretly filmed the complainant, a 15 year old girl, in the process of undressing at the physiotherapist's.

As to the counts of indecent dealing, the complainant child had been referred to the applicant by the physiotherapist. On the occasion of the first count the applicant massaged her buttocks, her shoulders and lower back and then above her breasts. He also…

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 Fereiro

Details

AGLC: R v Fereiro [2006] QCA 10
Case: [2006] QCA 10
Decision Date: 6 February 2006

CaseChat Overview and Summary

In the case of R v Fereiro, the appellant was convicted of recording an indecent visual image and two counts of indecent dealing involving a 15-year-old female patient. The appellant, a podiatrist, was sentenced to 18 months imprisonment, suspended after serving eight months, for a non-parole period of three years. The appellant applied for leave to appeal against the sentence, arguing it was manifestly excessive. The legal issues before the court were whether the sentence was disproportionately harsh considering the appellant's loss of marriage, livelihood, and public shaming, and if the sentence took into account all relevant mitigating factors.

The court considered the seriousness of the offences, the breach of trust, and the impact on the complainant and her family. The learned sentencing judge emphasised the betrayal of trust, which was a critical factor in determining the sentence. The court reviewed the principle that a sentence must not be manifestly excessive, referencing R v Moffat and R v Pham. After evaluating the totality of circumstances, including the appellant's professional status and the severe impact on his life, the court concluded that the sentence was not manifestly excessive. The appeal against the sentence was dismissed, and the original sentence was upheld.

Orders

Orders of the court

Application for leave to appeal against sentence dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Fereiro [2006] QCA 10
PARTIES:	R v FEREIRO, David Jude (applicant)
FILE NO/S:	CA No 331 of 2005 DC No 1910 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	6 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	6 February 2006
JUDGES:	McMurdo P, Keane JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - where applicant pleaded guilty to one count of recording an indecent visual image and two counts of indecent dealing - where applicant a podiatrist - where complainant a 15 year old female patient of applicant - where complainant and her mother initially accepted behaviour due to applicant's profession - where applicant's conduct had significant impact on complainant and her mother - where applicant lost marriage, will likely lose livelihood and has suffered public shaming - where learned sentencing judge placed importance on betrayal of trust - where applicant sentenced to 18 months imprisonment suspended after eight months for an operational period of three years - whether sentence imposed manifestly excessive R v Moffat [2003] QCA 95; CA No 439 of 2002, 11 March 2003, cited R v Pham [1996] QCA 3; CA No 435 of 1995, 6 February 1996, cited
COUNSEL:	R A East for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent