SUPREME COURT OF QUEENSLAND
CITATION:
R v FVN [2021] QCA 88
PARTIES:
R
v
FVN
(applicant)FILE NO/S:
CA No 227 of 2020
DC No 2351 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 22 October 2020 (Barlow QC DCJ)
DELIVERED ON:
5 May 2021
DELIVERED AT:
Brisbane
HEARING DATE:
13 April 2021
JUDGES:
Sofronoff P and Mullins JA and Bradley J
ORDER:
The application for leave to appeal against sentence is refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to 23 counts of sexual offences against four children under his care – where the learned sentencing judge gave effect to the applicant’s timely plea and mitigating circumstances by reducing the head sentence – where the learned sentencing judge made no order about the applicant’s parole eligibility date – where the learned sentencing judge did not advert to the possibility of not fixing a parole eligibility date before pronouncing sentence – whether the applicant was denied procedural fairness
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 13 years imprisonment for each of three counts of rape – where the learned sentencing judge made no order about the applicant’s parole eligibility date – where in sentencing the applicant, the learned sentencing judge had primary regard to the factors set out in s 9(6) of the Penalties and Sentences Act 1992 (Qld) and concluded the factors indicated a most severe penalty – whether the sentence was manifestly excessive to the extent that parole eligibility should have been fixed at a third of the 13-year head sentence – whether the sentence was manifestly excessive in all of the circumstances
Corrective Services Act 2006 (Qld), s 184(2)
Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(4), s 9(5), s 9(6), s 13(1), s 160B(3), s 160D(3)Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied
Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6, cited
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, applied
R v AAG & AAH[2009] QCA 158, applied
R v BBY[2011] QCA 69, considered
R v Blanch (2008) 50 MVR 541; [2008] QCA 253, considered
R v DAF[2004] QCA 368, considered
R v H[2001] QCA 167, considered
R v Hoad (2005) 43 MVR 475; [2005] QCA 92, considered
R v Kitson[2008] QCA 86, considered
R v MCW [2019] 2 Qd R 344; [2018] QCA 241, followed
R v Norton[2007] QCA 320, considered
R v PAN[2011] QCA 192, considered
R v Randall[2019] QCA 25, applied
R v RDD[2004] QCA 403, followed
R v Robertson (2008) 185 A…
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- AGLC
- R v FVN [2021] QCA 88
- Case
- [2021] QCA 88
- Decision Date
CaseChat Overview and Summary
The Court of Appeal first considered whether the applicant was denied procedural fairness by the sentencing judge not specifically raising the possibility of not fixing an early parole eligibility date before pronouncing the sentence. The Court found that there was no denial of procedural fairness, as the applicant's plea was not early by any measure, did not evidence any remorse, and did not justify a large reduction in sentence or an earlier parole eligibility date. The Court concluded that the sentence was a reasonable means of giving effect to the mitigating circumstances, including the applicant's timely plea, and did not vary the effect of the statutory provisions as to parole eligibility to further punish the applicant.
Second, the Court of Appeal considered whether the sentence was manifestly excessive in all of the circumstances. The Court found that the applicant's reliance on R v AAG & AAH [2009] QCA 158 was misplaced, as the cases involved vastly different offending. The Court noted that there is no mathematical formula for determining the appropriate non-parole period, and every case turns on its own circumstances. The Court held that the sentence was within the appropriate range to reflect the criminality of the offence and did not find the sentence to be manifestly excessive.
ORDERS:
The application for leave to appeal against sentence is refused.
Orders
Orders of the court
The application for leave to appeal against sentence is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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