Basten JA at [1] Schmidt J at [2] Fagan J at [107]
Decision:
(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal against sentence – assault with act of indecency – victim under 16 years – sexual intercourse with person under 16 years – intimidate with intention to cause fear of physical harm – whether the sentencing judge mistook the facts in relation to count 3 and thereby erred in assessing the objective seriousness of the offending – whether the sentences imposed in respect of counts 2 and 3 were manifestly excessive
John Alarcon (Applicant) Regina (Respondent/Crown)
Representation:
Counsel: I Neil SC with M Kalyk (Applicant) F Veltro (Respondent/Crown)
Solicitors: Murphy’s Lawyers Inc (Applicant) Solicitor for Public Prosecutions (Respondent/Crown)
File Number(s):
2015/146650
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:
---
Date of Decision:
07 April 2017
Before:
Syme DCJ
File Number(s):
2015/146650
Judgment
BASTEN JA: I agree with Schmidt J and with the additional reasons of Fagan J.
SCHMIDT J: In April 2017 Syme DCJ sentenced John Alarcon for two offences under ss 61M(2) and 66C(3) of the Crimes Act1900 (NSW) and one offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which he admitted having committed on 16 May 2015. Mr Alarcon received 12% discounts for those pleas.
Mr Alarcon asked that two other offences, one of assault under s 61 of the Crimes Act and the other of intimidation under s 13(1)…
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 Alarcon v The Queen
Sign in free to access the full text
Details
AGLC
Alarcon v The Queen [2018] NSWCCA 298
Case
[2018] NSWCCA 298
Decision Date
CaseChat Overview and Summary
The case of Alarcon v The Queen involved the appellant, Alarcon, appealing against his sentence on three counts. Count 1 involved assaulting a person with the act of indecency, while counts 2 and 3 involved sexual intercourse with a person under the age of 16 years and intimidating someone with the intention to cause fear of physical harm, respectively. The Court of Appeal of the Supreme Court of Victoria heard the appeal.
The legal issues before the court were whether the sentencing judge had erred in assessing the objective seriousness of the offending by misconstruing the facts in relation to count 3, and whether the sentences imposed in respect of counts 2 and 3 were manifestly excessive. The court considered the nature and circumstances of the offending, the appellant's criminal history, and the principles of sentencing.
The court found that the sentencing judge had not erred in assessing the objective seriousness of the offending in relation to count 3. The court also found that the sentences imposed for counts 2 and 3 were not manifestly excessive. The court considered the seriousness of the offending, the appellant's criminal history, and the principles of sentencing in reaching its decision. The appeal was dismissed. The court did not make any orders as the appeal was dismissed.