R v J F - [2008] VSCA 243

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 373 of 2006

THE QUEEN

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JUDGES:	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 243

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to series of sexual offences against his three stepchildren over five-year period – Sentenced to 11 years’ imprisonment with eight and a half year non-parole term – Sentencing judge erred in relation to maximum penalties for two offences – Crown concession that sentencing discretion miscarried and appellant fell to be re-sentenced – Appeal allowed and sentence varied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell SC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr T Kassimatis	Balmer & Associates
ASHLEY JA: REDLICH JA: WEINBERG JA:

The appellant, JF, pleaded guilty in the County Court at Melbourne to two counts of maintaining a sexual relationship with a child under the age of 16, three counts of committing an indecent act with a child under the age of 16, and one count of indecent assault. The offences took place between September 1991 and November 1996. The charges were laid under two separate presentments.
The appellant was sentenced on 28 October 2005 to a total of 11 years’ imprisonment. The sentencing judge fixed a non-parole period of eight years and six months. The appellant was ordered to register as a Class 1 sexual offender under the Sex Offenders Registration Act 2004. He now appeals against his sentence.
The background to these offences may be briefly stated. The appellant, who is now 58 years of age, was aged between 43 and 45 at the time of the offending. His victims were his three stepchildren, the natural children of a woman that he married in December 1993. They were NS (a son born on 18 August 1984), MS (a son born on 1 September 1985), and SS (a daughter born on 15 January 1989). They were aged between five and 12 at the time of the appellant’s offending.
The delay in bringing these charges needs to be explained. In August 1996, SS, then aged seven, complained to local community welfare services of having been sexually molested. As a result, she and her two brothers were taken into care.
The appellant was interviewed by police on 28 August 1996. He denied the allegations made against him. The police decided that there was insufficient evidence to charge him.
However, in April 1997, both NS and MS complained of having been interfered with by the appellant. The police conducted an investigation into their allegations. Before that investigation had concluded, the appellant fled Victoria. He was finally apprehended in New South Wales in May 2004, and subsequently extradited to Victoria.
As previously indicated, the appellant faced two separate presentments. These were respectively Presentment S00556883 (the ‘first presentment’) and Presentment S02435018.1 (the ‘second presentment’).
The offence described in count 1 on…

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 J F

Details

AGLC: R v J F [2008] VSCA 243
Case: [2008] VSCA 243
Decision Date: 5 December 2008

CaseChat Overview and Summary

The appellant, J F, was convicted of multiple sexual offences committed against his three stepchildren over a period of five years. Upon pleading guilty, he was sentenced to 11 years’ imprisonment with an eight and a half year non-parole period. Dissatisfied with the sentence, J F appealed to the court, asserting that the sentencing judge had erred in determining the maximum penalties applicable to two of the offences. The central legal issues the court needed to address were whether the sentencing judge had correctly applied the maximum penalties and if the sentence imposed had miscarried due to these errors.

The court examined the sentencing judge’s approach to determining the maximum penalties for two specific offences, finding that errors had indeed occurred. The court noted that the Crown had conceded that the sentencing discretion had miscarried as a result of these errors. The appeal hinged on whether the appellant should be re-sentenced due to the identified mistakes. The court considered the nature of the offences, the appellant’s guilty plea, and the need for a sentence that appropriately reflects the gravity of the crimes and ensures just outcomes for the victims and the community.

In light of the identified errors, the court allowed the appeal and varied the sentence. The appellant was re-sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years. The court emphasised the importance of accurate sentencing, particularly in cases involving sexual offences against children, to ensure that the sentence is proportionate and reflective of the true circumstances of the case. The final orders of the court mandated the re-sentencing of the appellant to the revised term and non-parole period.

Orders