R v FVN

Case [2021] QCA 88

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 2019

DIVISION:

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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Details
AGLC
R v FVN [2021] QCA 88
Case
[2021] QCA 88
Decision Date

CaseChat Overview and Summary

In the matter of R v FVN, the applicant appealed against the sentence imposed following a guilty plea to 23 counts of sexual offences against four children under his care. The Queensland Court of Appeal was tasked with determining whether the sentence was manifestly excessive or inadequate and whether the applicant was denied procedural fairness. The applicant argued that the non-parole period should have been set at a third of the 13-year head sentence for each of three counts of rape to reflect the mitigating factors, including the applicant's timely plea.

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

In pronouncing the sentence, the learned sentencing judge explained that the 13-year head sentence was reduced from “15 years or more” to take account of the timing of the applicant’s guilty plea and 53 days the applicant had spent in custody in the Philippines awaiting deportation to Australia. His Honour took into account the applicant’s timely guilty plea as a mitigating factor, on the basis that it meant the four complainants would not have to give evidence at a trial, saved substantial court time, and amounted to cooperation with the overall administration of justice.Conclusion on proposed ground 1 As the Court explained in R v Randall [2019] QCA 25 at [38]:“In the absence of a statute that prescribes the way in which an offender should be punished, sentencing judges have always regarded all of the elements of a sentence to be flexible. They will continue to do so in order to arrive at a just sentence in all the circumstances.” The applicant’s plea was not early by any measure. It did not evidence any remorse. It did not justify a large reduction in sentence. It did not call for a further allowance by way of an early parole eligibility date. The applicant had no “claim” for a parole eligibility date earlier than the statutory midpoint. The possibility that the learned sentencing judge would reduce the head sentence and not fix an early parole eligibility date could not have been regarded as unexpected or unusual. Such a sentence was a reasonable means of giving effect to the mitigating circumstances, including the applicant’s timely plea. It did not vary the effect of the statutory provisions as to parole eligibility to further punish the applicant. It simply allowed them to operate according to their terms. We reject the contention that his Honour erred by not specifically raising this element of the sentence as a possibility before pronouncing it. There was no denial of procedural fairness in this respect. The first proposed ground of appeal is without merit.Proposed ground 2: Manifestly excessive The applicant’s second proposed ground of appeal is that the sentence was manifestly excessive to the extent that the non-parole period should have been set at a third of the 13-year head sentence, to reflect the mitigating factors. At the hearing of this application, the applicant’s counsel relied on R v AAG & AAH [2009] QCA 158, where the two offenders entered early guilty pleas to nine counts of rape and one of deprivation of liberty committed against a single adult complainant. They identified two co-offenders against whom they were prepared to give evidence at a trial. DNA samples implicated the co-offenders in the rape of another complainant. It was not contended that AAG & AAH involved even broadly comparable offending. However, the applicant relied on the following passage at [20] of the reasons of McMurdo P in explaining the Court’s decision:“Although there is no mathematical formula and every case will turn on its own circumstances, courts give very significant discounts to sex offenders who plead guilty and save the complainant from giving evidence at committal and trial, usually in the range of one-quarter to one-third of the head sentence applicable after a trial. Where apposite, a parole eligibility date may also be fixed somewhat earlier than the usual half way point. Of course, the overall sentence must still be within the appropriate range to reflect the criminality of the offence.”

Ratio Decidendi

Legal Principle Established

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