FD v R [2013] NSWCCA 139

FD v R [2013] NSWCCA 139

Although the sentencing judge accepted medical evidence of the applicant's cognitive deficit, he erred by making findings inconsistent with that acceptance regarding the applicant’s insight and choice. However, balancing all demonstrated errors, some of which favoured the applicant—including an incorrect standard non-parole period and excessive discount for remorse—no other lesser sentence was warranted in law. The seriousness and aggravating features of the offences, together with the manner of sentencing, justified dismissing the appeal.

Jurisdiction
Australia
Judgment Date
12 June 2013
Procedural Posture
Criminal Appeal / Court of Criminal Appeal Judgment on Application for Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
['sentencing' 'aggravated Indecent Assault' 'sexual Intercourse Without Consent' 'standard Non Parole Period' 'moral Culpability' 'medical Evidence in Sentencing' 'breach of Trust' 'discount for Guilty Plea' 'remorse']
['criminal Law'] ['sentencing' 'aggravated Indecent Assault' 'sexual Intercourse Without Consent' 'standard Non Parole Period' 'moral Culpability' 'medical Evidence in Sentencing' 'breach of Trust' 'discount for Guilty Plea' 'remorse']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal Judgment on Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether sentencing judge erred in making findings inconsistent with acceptance of medical opinion on applicant’s brain damage' 'Whether sentencing judge erred by incorrectly stating standard non-parole periods' 'Whether sentencing judge incorrectly ascribed a discount for remorse over and above value of guilty plea' "Whether failure to consider applicant's brain damage as reducing moral culpability and significance of deterrence was an error" 'Whether objective seriousness of offences was correctly assessed']

Ratio Decidendi

Although the sentencing judge accepted medical evidence of the applicant's cognitive deficit, he erred by making findings inconsistent with that acceptance regarding the applicant’s insight and choice. However, balancing all demonstrated errors, some of which favoured the applicant—including an incorrect standard non-parole period and excessive discount for remorse—no other lesser sentence was warranted in law. The seriousness and aggravating features of the offences, together with the manner of sentencing, justified dismissing the appeal.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • ['Leave to appeal granted' 'Appeal dismissed']