Allen v R - [2008] NSWCCA 11

New South Wales
Court of Criminal Appeal

CITATION: Allen v Regina [2008] NSWCCA 11

HEARING DATE(S): 29 November 2007

JUDGMENT DATE:
8 February 2008

JUDGMENT OF: Giles JA at 1; Grove J at 2; Harrison J at 51

DECISION: Appeal allowed
Appellant resentenced

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Sexual assault - Attempt to pressure complainant not to testify - Offender and complainant in consensual relationship - Terminated by complainant but not accepted by offender - Single outbreak of offending followed by attempt to avoid consequences - Youth of both parties - Total sentence after cumulation excessive

CASES CITED: R v Hammoud [2000] 118 A Crim R 66
R v MMK [2006] NSWCCA 272; [2006] 164 A Crim R 481
R v Way (2004) 60 NSWLR 168

TEXTS CITED: D Thomas, Principles of Sentencing (2nd edn (1979) Heinemann)

PARTIES: Sam David ALLEN v REGINA

FILE NUMBER(S): CCA 2007/5307

COUNSEL: M C Ramage QC (Appellant)
M Hobart SC (Respondent/Crown)

SOLICITORS: Robertson Saxton Primrose Dunn (Appellant)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/11/0776

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 28 November 2006

CCA 2007/5307

GILES JA
GROVE J
HARRISON J
8 February 2008

Sam David ALLEN v R

Judgment

1 GILES JA: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Blackmore DCJ in Sydney District Court following the conviction of the appellant at trial on counts of assault, indecent assault, sexual intercourse without consent (two counts) and doing an act with intent to pervert the course of justice (the justice offence). The effective term of imprisonment for all counts amounted to a total sentence of twelve years six months with a non-parole period of nine years. The appellant is now twenty four years of age. I would grant the leave sought.

3 The four offences first mentioned occurred on 28 January 2004 and involved the same victim whom I shall refer to from time to time as C. The justice offence occurred shortly thereafter and involved C in circumstances which I will describe.

4 There is no challenge to the facts found by the learned sentencing judge concerning the commission of the offences and I draw this summary from his remarks and from material which was undisputed. As at January 2004 the appellant was aged twenty and C was aged nineteen. They had been for some months engaged in a relationship which included, on occasions, consensual sexual intercourse. C wished to terminate the relationship whereas the appellant wanted it to continue. However she permitted him to remain in her apartment as he had told her that he had nowhere else to stay.

5 On the date mentioned an argument broke out and the appellant grasped C as she walked away from him by what was described as a “bear hug”. The squeezing involved interference with her breathing. This constituted…

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 Regina [2008] NSWCCA 11
Case: [2008] NSWCCA 11
Decision Date: 8 February 2008

CaseChat Overview and Summary

Allen was convicted of sexual assault and attempted to coerce the complainant, with whom he had a consensual relationship, not to testify. The court was tasked with determining whether the sentence imposed was excessive, given the offender's youth and the nature of the offending. The offender had engaged in a single incident of sexual assault followed by an attempt to avoid legal consequences. The court recognised the consensual relationship between the offender and the complainant, which was terminated by the latter but not accepted by the offender.

The primary legal issue before the court was whether the total sentence imposed was excessive considering the circumstances. The court noted that both parties were young and the offending was a single outbreak, followed by an attempt to evade consequences. The court balanced these factors against the need to deter similar offending and uphold the rule of law. The court held that the totality of the sentence was excessive, taking into account the youth of both parties and the nature of the offending.

In reaching its conclusion, the court considered the need for a sentence that appropriately reflected the seriousness of the offence while also considering the youth of the offender and the circumstances surrounding the offending. The court recognised that deterrence and upholding the rule of law were important, but also emphasised the need for proportionality in sentencing. Ultimately, the court found that the sentence was excessive and ordered a reduction in the total sentence imposed on the offender.

Orders