FD v R [2013] NSWCCA 139

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: FD v R [2013] NSWCCA 139 Hearing dates: 9 April 2013 Decision date: 12 June 2013 Before: Simpson J at [1] Harrison J at [3] Bellew J at [4] Decision: 1.Leave to appeal granted. 2.Appeal dismissed. Catchwords: CRIMINAL LAW - sentence - multiple offences of aggravated indecent assault and sexual intercourse without consent - where medical evidence that the applicant had brain damage leading to cognitive deficit at the time of his offending - where sentencing judge accepted medical opinion led in applicant's case but proceeded to make findings inconsistent with that acceptance of opinion - where error established - whether any other sentence warranted in law - where sentencing judge erred by incorrectly stating the standard non-parole period applicable to some of the offences - where applicant the paternal grandfather of the two victims - where sentencing judge erred in the applicant's favour by ascribing an additional discount on account of remorse over and above the discount on account of the utilitarian value of the pleas of guilty which had been entered - where sentencing judge erred in failing to have regard to the applicant's brain damage as a factor which reduced his moral culpability and rendered general deterrence of less significance - where offending involved gross breach of trust perpetrated on two young victims over a long period of time - where sentencing judge imposed an aggregate sentence comprising a non parole period of 4 years with a balance of term of 4 years - no other sentence warranted in law - appeal dismissed Legislation Cited: Crimes Act 1900 NSW Crimes (Sentencing Procedure) Act 1999 NSW Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 NSW Crimes (Sentencing Procedure) Amendment Act NSW 2007 Criminal Appeal Act NSW 1912 Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Muldrock v R (2011) 244 CLR 120 R v Anderson [1981] VR 155; (1980) 2 A Crim R 379 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Israil (2002) NSWCCA 255 R v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 R v Simpson (2001) 53 NSWLR 704 Category: Principal judgment Parties: FD (Applicant) Crown (Respondent) Representation: Mr J Agius SC & Mr G Kennedy (Applicant) Mr P G Ingram SC (Respondent) Gerard Charles Kelly (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/224725 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-07-20 00:00:00 Before: Judge Charteris SC