Alarcon v The Queen

Case [2018] NSWCCA 298


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Alarcon v R [2018] NSWCCA 298
Hearing dates: 9 November 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Before: 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
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Attorney General's Application Under s 37 Of The Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2
DL v The Queen [2018] HCA 32
Hughes v R [2018] NSWCCA 2
Kresovic v R [2018] NSWCCA 37
Moss v R [2015] NSWCCA 313
Mulato v Regina [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
PB v R [2016] NSWCCA 258
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Hibberd [2009] NSWCCA 20
R v King [2009] NSWCCA 117
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v MD [2018] NSWDC 156
R v Wilkinson (No 5) [2009] NSWSC 4
R v Wright [2017] NSWCCA 102
Ramoss v R [2015] NSWCCA 313
Stewart v R [2012] NSWCCA 183
Vandeventer v R [2013] NSWCCA 33
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
West v R [2017] NSWCCA 306
Zreika v R [2012] NSWCCA 44
Category:Principal judgment
Parties: 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

  1. BASTEN JA: I agree with Schmidt J and with the additional reasons of Fagan J.

  2. 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.

  3. 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)…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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