R v PFC

Case [2011] NSWCCA 117 25 May 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: REGINA v PFC [2011] NSWCCA 117
Hearing dates: 9 May 2011
Decision date: 25 May 2011
Before: ALLSOP P at 1
HOEBEN J at 2
HALL J at 72
Decision:
Crown appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - 17 counts of various forms of sexual assault and six counts of acting with intent to pervert the course of justice involving six juvenile complainants over 18 months - no challenge to individual sentences but challenge to degree of accumulation - whether failure to properly assess the objective seriousness of the intent to pervert the course of justice offences - application of principles of proportionality and totality - judge's sentencing discretion did not miscarry.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Cahyadi v R [2007] NSWCCA 1 at [27]; (2007) 168 A Crim R 41
Pearce v The Queen (1998) 194 CLR 610
Qing An v Regina [2007] NSWCCA 53
R v Hamid [2006] NSWCCA 302 at [134]
R v Holder (1983) 3 NSWLR 245
R v Taylor [2007] NSWCCA 99 at [25]
R v Wicks [2005] NSWCCA 409 at [49]
Category: Principal judgment
Parties: Regina - Appellant
PFC - Respondent
Representation: Ms J Dwyer - Appellant
Mr J Trevallion - Respondent
Archbold Legal - PFC
S Kavanagh, Solicitor for Public Prosecutions - Crown

File Number(s): 2008/3811066
Publication restriction: Victims are not to be identified until further order of the Court.
Decision under appeal

Date of Decision:

2009-12-21 00:00:00

Before:

Norrish QC DCJ

File Number(s):

2008/11/0616

Judgment

ALLSOP P: I agree with Hoeben J.

HOEBEN J:

Offences and sentence

On 26 June 2009 the respondent was convicted after trial of 23 counts in respect of various offences involving six juvenile complainants, spanning a period 1 August 1997 to 11 February 2009.

None of the offences carried standard non-parole periods.

On 21 December 2009 his Honour Norrish DCJ sentenced the respondent to a total effective sentence of imprisonment comprising a non-parole period of 10 years 9 months with a balance of term of 3 years 8 months.

The offences and individual sentences imposed are summarised as follows:

Count

Offence, Section Maximum penalty

Date of offence

Sentence

Complainant DM

1

Aggravated (under 16) indecent assault s61M(l), 7 years

1.8.97-30.9.97

Fixed term 2 years (8.9.09 -7.9.11)

2

Sexual intercourse with child between 10 and 16 s 66C(1), 8 years

1.12.97-31.12.97

Fixed term 3 years (8.9.09-7.9.12)

3

Attempted sexual intercourse with child between 10 and 16 ss66C/66D(l), 8 years

1.12.97-31.3.98

Fixed term 4 years (8.9.09-7.9.13)

4

Attempted sexual intercourse with child between 10 and 16 ss66C/66D(l), 8 years

1.3.98-30.4.98

Fixed term 3 years (8.9.09-7.9.12)

6

Do act with intent to pervert course of justice s 319, 14 years

1.12.06

Fixed term 1 year, 6 mths (8.9.12-7.3.14)

Complainant CB

7

Use child (over 14 years) for pornographic purposes s 91G(l)(a), 5 years

1.4.98-31.5.98

Fixed term 1 year, 6 mths (8.9.12-7.9.13)

Complainant SB

12

Aggravated (under…

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 PFC

Details

AGLC: R v PFC [2011] NSWCCA 117
Case: [2011] NSWCCA 117
Decision Date: 25 May 2011

CaseChat Overview and Summary

In the case of R v PFC, the respondent appealed against his sentence for multiple counts of sexual assault and perverting the course of justice. The accused, a police officer, had been found guilty of 17 counts of various forms of sexual assault and six counts of acting with intent to pervert the course of justice, involving six juvenile complainants over a period of 18 months. The appeal did not challenge the individual sentences but rather the degree of accumulation. The central issue for the court was whether the sentencing judge had failed to properly assess the objective seriousness of the perverting the course of justice offences, and whether the principles of proportionality and totality had been correctly applied. The court needed to determine if the judge’s sentencing discretion had miscarried.

The court examined the sentencing principles of proportionality and totality, assessing whether the sentence imposed was appropriate in relation to the gravity of the offences. It considered the unique circumstances of each offence and the harm caused to the victims. The court emphasised that the principles of proportionality and totality do not demand an exact mathematical calculation but require a holistic assessment of the crimes and the sentence imposed. The appeal court found that the sentencing judge had appropriately considered the cumulative impact of the offences and had not misapplied the principles of sentencing. The court concluded that the sentence, while severe, was proportionate to the gravity of the crimes committed.

As a result of the appeal, the court upheld the original sentence imposed by the lower court. The appeal was dismissed, and the original sentence remained in place. The decision underscores the importance of a balanced and comprehensive approach to sentencing, particularly in cases involving multiple serious offences against vulnerable victims. The court's ruling reaffirmed the need for sentencing judges to carefully consider the principles of proportionality and totality to ensure that sentences are fair and appropriate to the nature and circumstances of the crimes.

Orders