FV v Regina [2006] NSWCCA 237

FV v Regina [2006] NSWCCA 237

The sentencing judge, although he referred to the complainant's statement beyond the agreed facts, did not breach the De Simoni principle or procedural fairness. The sentence in respect of count 2 (attempted aggravated sexual intercourse) was manifestly excessive given the applicant's guilty plea, good character, mitigation, and that the attempt was not completed. Resentencing is appropriate with a reduction for count 2.

Jurisdiction
Australia
Judgment Date
17 August 2006
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence
Outcome
Leave to appeal granted; appeal allowed; sentences for counts 1 and 3 confirmed; sentence for count 2 quashed and resentenced.
Legal Topics
['sentencing' 'aggravated Sexual Offences' 'attempted Sexual Intercourse' 'child Sexual Assault' 'gross Breach of Trust' 'sentencing for Attempt']
['criminal Law'] ['sentencing' 'aggravated Sexual Offences' 'attempted Sexual Intercourse' 'child Sexual Assault' 'gross Breach of Trust' 'sentencing for Attempt']

Case Brief

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in going outside agreed facts' 'Whether the sentencing judge made findings of fact not open to be made' 'Whether the sentencing judge erred in accumulating sentences' 'Whether the sentence was manifestly excessive']

Ratio Decidendi

The sentencing judge, although he referred to the complainant's statement beyond the agreed facts, did not breach the De Simoni principle or procedural fairness. The sentence in respect of count 2 (attempted aggravated sexual intercourse) was manifestly excessive given the applicant's guilty plea, good character, mitigation, and that the attempt was not completed. Resentencing is appropriate with a reduction for count 2.

Court Disposition

Leave to appeal granted; appeal allowed; sentences for counts 1 and 3 confirmed; sentence for count 2 quashed and resentenced.

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'Sentences imposed by his Honour in respect of counts 1 and 3 confirmed.' 'Sentence imposed by his Honour in respect of count 2 quashed and in lieu thereof, the applicant sentenced to imprisonment of 6 years commencing on 31.1.06 and expiring on 30.1.12, with a non...