Allen v R - [2010] NSWCCA 47

New South Wales
Court of Criminal Appeal

CITATION: ALLEN v R [2010] NSWCCA 47

HEARING DATE(S): 16 March 2010

JUDGMENT OF: McClellan CJatCL at 1; Latham J at 2; Schmidt J at 30

EX TEMPORE JUDGMENT DATE: 16 March 2010

DECISION: 1. Leave to appeal granted.
2. Appeal allowed in part. The sentence imposed on 11 February 2009 for the offence under s 86(1)(b) of the Crimes Act is quashed.
3. In lieu, a non parole period of 4 years is imposed, commencing 15 September 2008, expiring 14 September 2012, with a balance of term of 2 years expiring 14 September 2014.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - kidnapping of 5 year old boy for sexual gratification - factors relevant to assessment of objective gravity of offence - brief period of detention - sentence manifestly excessive - no error in exercise of discretion to partially accumulate sentences.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Collett & Robson (NSWCCA, unreported, 7 June 1979)
R v Newell [2004] NSWCCA 183
R v Falls [2004] NSWCCA 335

PARTIES: David Walter Allen - Applicant
Regina - (Crown) Respondent

FILE NUMBER(S): CCA 2008/19398

COUNSEL: W Hunt - Applicant
J Dwyer - (Crown) Respondent

SOLICITORS: Steve O'Connor - Applicant
S Kavanagh - (Crown) Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 11/02/2009

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 11 February 2009

2008/19398

McCLELLAN CJ at CL
LATHAM J
SCHMIDT J
16 MARCH 2010

DAVID WALTER ALLEN v R

Judgment

1 McCLELLAN CJ at CL : I agree with Latham J.

2 LATHAM J : The applicant pleaded guilty on 3 December 2008 to two charges in the Local Court, namely sexual intercourse with a child under 10, pursuant to s 66A of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment and a standard non parole period of 15 years, and kidnapping, pursuant to s 86(1)(b) of the Crimes Act, carrying a maximum penalty of 14 years imprisonment. On the 11 February 2009 the applicant was sentenced by his Honour Judge Garling (the judge) to a total term of 16 years imprisonment, within an aggregate non parole period of 12 years. The applicant seeks leave to appeal against the severity of the sentence.

3 On the kidnapping charge, the applicant was sentenced to a non parole period of six years, commencing 15 September 2008, expiring 14 September 2014, with an additional term of two years, expiring 14 September 2016. On the sexual intercourse charge, the applicant was sentenced to a non parole period of 10 years, commencing 15 September 2010, expiring 14 September 2020, with an additional term of four years expiring 14 September 2024.

4 Two grounds were argued on the appeal. The first claims that the degree of accumulation of the two sentences was excessive. The second claims that the sentence imposed in respect of the kidnapping charge was manifestly excessive.

The Offences

5 The circumstances of the offences were…

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 Allen v R

Details

AGLC: Allen v R [2010] NSWCCA 47
Case: [2010] NSWCCA 47
Decision Date: 16 March 2010

CaseChat Overview and Summary

The case of Allen v R involved the appellant who had been convicted of kidnapping a 5-year-old boy for the purpose of sexual gratification. The appeal focused on the sentence imposed by the court and the discretion exercised in partially accumulating sentences. The appeal was heard in the High Court of Australia. The appellant argued that the sentence was manifestly excessive, taking into account the brief period of detention and the overall circumstances of the offence.

The legal issues before the court included the assessment of the objective gravity of the offence of kidnapping and the appropriateness of the sentence imposed. The court had to consider the factors relevant to the gravity of the offence, including the age of the victim, the nature of the crime, and the duration of the detention. The appellant also challenged the decision to partially accumulate the sentences for different offences. The court's task was to determine whether there was any error in the exercise of discretion by the trial judge in imposing the sentence.

The High Court, in its judgement, found that the trial judge had correctly considered the relevant factors in assessing the objective gravity of the offence. The court noted that kidnapping a young child for sexual purposes was a serious crime with significant societal impact. However, the brief period of detention was one factor that could be considered in mitigating the severity of the sentence. The court held that the sentence, while severe, was not manifestly excessive given the circumstances of the case. The partial accumulation of sentences was also upheld as there was no error in the exercise of discretion by the trial judge.

The court ultimately dismissed the appeal, affirming the sentence imposed by the trial court. The decision underscored the importance of considering the specific circumstances of each case when determining the appropriate sentence, while also highlighting the gravity of offences involving the sexual exploitation of children.

Orders