CITATION: Dudley Mark Aslett v Regina [2006] NSWCCA 49

HEARING DATE(S): 20 February 2006

JUDGMENT DATE:
24 March 2006

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Howie J at 147

DECISION: 1. The appeal against conviction is dismissed 2. The application for leave to appeal against the sentences is granted, the appeal is allowed and, other than the sentence on the eighth count, the sentences are quashed 3. The following sentences be and are imposed in lieu of those quashed - Count 1: a non-parole period of eight years commencing on 22 August 2003 and expiring on 21 August 2011 and a balance of term of two years and eight months; Count 2: a non-parole period of sixteen years commencing on 22 August 2008 and expiring on 21 August 2024 and a balance of term of five years and four months; Counts 3 and 4: on each count a non-parole period of fifteen years commencing on 22 August 2009 and expiring on 21 August 2024 and a balance of term of five years; Counts 5, 6, and 7: on each count a non-parole period of nine years and six months commencing on 22 August 2017 and expiring on 21 February 2026 and a balance of term of seven years and six months commencing on 22 February 2026 and expiring on 21 August 2033.

CATCHWORDS: Criminal law - breaking entering and committing the serious indictable offence of robbery in circumstances of special aggravation - sexual intercourse without consent in company with deprivation of liberty - inciting complainant of sixteen years of age to commit an act of indecency - Criminal law - evidence of accomplice - whether direction to jury adequate - whether trial judge obliged to direct jury that evidence uncorroborated - Criminal law - Crown opening - in opening to jury Crown Prosecutor mistakenly misstated the effect of witness’ evidence - whether trial judge ought to have discharged jury - whether miscarriage of justice - Criminal law - whether evidence identifying appellant wrongly admitted - Criminal law - obligation of counsel objecting to admission of evidence to identify legal basis of objection and evidence relevant to that basis - Criminal law - whether prior inconsistent statements of Crown witness wrongly admitted - Criminal law - irrelevant evidence wrongly admitted - whether proviso should apply - Criminal law - remarks of Crown Prosecutor - whether miscarriage of justice - Criminal law - whether verdicts unreasonable and inconsistent with evidence - Criminal law - sentencing - whether sentencing judge erred in treating elements of offences as aggravating criminality - whether judge erred in finding circumstances aggravating criminality - Criminal law - sentencing - whether sentences increased beyond what was proportionate to criminality to extend period of protection of society from offender’s recidivism - Criminal law - sentencing - whether sentences manifestly excessive

LEGISLATION CITED: Evidence Act 1995
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Baskerville [1910] 2 KB 658

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 Aslett v R

Details

AGLC: Dudley Mark Aslett v Regina [2006] NSWCCA 49
Case: [2006] NSWCCA 49
Decision Date: 24 March 2006

CaseChat Overview and Summary

The case of Aslett v R involved the appellant, Aslett, who was convicted of several serious offences, including breaking and entering, robbery, deprivation of liberty, and inciting a minor to commit an act of indecency. The jury found Aslett guilty on all counts, and he appealed against his convictions and sentences. The High Court of Australia heard the appeal, examining various legal issues arising from the trial and sentencing process.

The legal issues in the case encompassed the adequacy of the trial judge's directions to the jury regarding the evidence of an accomplice, the potential for a miscarriage of justice due to errors in the Crown's opening address, the admissibility of evidence linking Aslett to the crimes, the relevance of prior inconsistent statements of a Crown witness, the admission of irrelevant evidence, and remarks made by the Crown Prosecutor during the trial. Additionally, the Court considered the proportionality and reasonableness of the sentences imposed by the sentencing judge.

The High Court held that the trial judge did not err in the directions given to the jury regarding the evidence of the accomplice, and no miscarriage of justice occurred due to the Crown Prosecutor's misstatement in the opening address. The Court found that the evidence identifying Aslett was properly admitted, and the prior inconsistent statements of the Crown witness were relevant. The Court also concluded that irrelevant evidence should not have been admitted, but the proviso applied to prevent a miscarriage of justice. Remarks made by the Crown Prosecutor did not prejudice the fairness of the trial. The Court determined that the verdicts were not unreasonable or inconsistent with the evidence. Regarding sentencing, the Court found no error in the sentencing judge's treatment of the elements of the offences as aggravating factors or in the judge's findings of aggravating circumstances. The sentences were not manifestly excessive or disproportionate to the criminality.

The High Court dismissed the appeal against conviction and sentences, affirming Aslett's convictions and sentences as imposed by the lower courts.

Orders