R v Finlayson - [2008] VSCA 50

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 45 of 2008

THE QUEEN
	V
JOHN FINLAYSON

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JUDGES:	BUCHANAN, VINCENT and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2008
DATE OF JUDGMENT:	26 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 50

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Criminal law – Sentence – Indecent assaults – Offences committed more than 30 years ago – Offender sustained brain injury – Neuropsychologist’s opinion that the brain injury played a significant role in the offending rejected by sentencing judge – Sentencing judge failed to alert counsel that she might reject the neuropsychologist’s opinion – Offender re-sentenced to two years’ imprisonment – Unserved portion of the sentence wholly suspended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr S R Johns	Victoria Legal Aid

BUCHANAN JA:

The applicant was arraigned in the County Court and pleaded guilty to a presentment containing two counts of indecent assault. After a plea, the applicant was sentenced to be imprisoned for a term of 18 months on each count. It was directed that six months of the sentence on the second count be served cumulatively upon the sentence on the first count, creating a total effective sentence of two years' imprisonment. The sentencing judge directed that 21 months of the sentence be suspended for a period of 21 months.

The victim of the offences was an apprentice jockey at stables in Caulfield at which the applicant was employed as a strapper. The victim was living at the stables. The applicant also lived in the area. The offences occurred between 1 April 1974 and 31 August 1975, when the victim was aged between 15 and 17 years and the applicant was in his early twenties. In the stables at which the victim was employed, there was a practice of subjecting apprentices to degrading assaults. One of the practices was called greasing. The victim was held down, stripped naked and painted with hoof oil, a thick black grease. Sometimes the assailants went further.

On the first occasion the subject matter of the charges against the applicant, the victim was held down by the applicant and another man, while a third pushed his fingers into the victim's anus. On the second occasion the same three men were present, and the neck of a beer bottle was inserted into the victim's anus. The victim could not say which of the three men inserted the bottle. The sentencing judge accepted that the applicant was not the instigator of the assaults, but rather an enthusiastic follower.

The applicant commenced an apprenticeship as a jockey at the age of 14 years. His career as a jockey ended in 1972, when he was seriously injured in a fall from a racehorse. The applicant sustained head and neck injuries and a broken leg. The applicant's skull was fractured and he was unconscious for six days. After the accident the applicant was unable to work for two…

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 Finlayson

Details

AGLC: R v Finlayson [2008] VSCA 50
Case: [2008] VSCA 50
Decision Date: 26 March 2008

CaseChat Overview and Summary

The case of R v Finlayson involved the defendant, Finlayson, who was convicted of indecent assaults committed more than 30 years ago. Finlayson had sustained a brain injury, and a neuropsychologist opined that this injury played a significant role in his offending behaviour. The sentencing judge rejected this opinion, and Finlayson appealed the sentence. The appeal focused on whether the sentencing judge erred by not alerting counsel that she might reject the neuropsychologist's opinion and by not considering the brain injury in the sentencing process.

The legal issues in this case centred on the proper application of sentencing principles in light of the neuropsychologist's opinion regarding Finlayson's brain injury. The appeal questioned whether the sentencing judge's failure to alert counsel of her potential rejection of the neuropsychologist's opinion constituted a breach of procedural fairness and whether the sentence imposed adequately reflected the mitigating factors of the brain injury and the long delay in sentencing.

The court found that the sentencing judge did not provide the required procedural fairness by failing to alert counsel that she might reject the neuropsychologist's opinion. Consequently, the court held that the sentence was materially affected by this error. The court also considered the significant delay in sentencing and the impact of Finlayson's brain injury on his offending. Based on these factors, the court re-sentenced Finlayson to two years' imprisonment, with the unserved portion of the sentence wholly suspended.

In conclusion, the court found that the sentencing judge erred by not alerting counsel to the possibility of rejecting the neuropsychologist's opinion. As a result, Finlayson was re-sentenced to two years' imprisonment, with the unserved portion of the sentence wholly suspended. This outcome reflected the mitigating factors of the brain injury and the substantial delay in sentencing.

Orders