Basten JA at [1]; Rothman J at [33]; Fagan J at [58]
Decision:
(1) Leave to Appeal granted (2) Appeal dismissed.
Catchwords:
CRIMINAL LAW – application for leave to appeal against sentence – manifest excess – whether sentencing judge erred in assessment of objective seriousness of each offence – use of comparative cases – whether sentencing judge erred in not accounting for summary disposition of offences – distinction between sentencing for uncharged acts and taking account of surrounding circumstances – effect of capacity to prosecute offence summarily – appeal dismissed.
Counsel: T Edwards (Applicant) H Baker (Respondent)
Solicitors: Kapsis & Associates (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):
2012/207409
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
09 April 2015
Before:
Baly DCJ
File Number(s):
2012/207409
Judgment
BASTEN JA: Section 61L of the Crimes Act 1900 (NSW) makes it an offence punishable by up to five years imprisonment to assault a person, committing an act of indecency in the course of the assault. The applicant was convicted on 27 November 2014, following a trial by jury in the District Court, of 11 offences of indecent assault involving seven different women. Thereafter, he entered pleas of guilty to two further counts on a separate indictment.
Each of the assaults took place in the course of him providing professional services as a masseur at a gymnasium. The applicant was sentenced on 9 April 2015 to an aggregate sentence of five years imprisonment, with a non-parole period of three years.
The circumstances of the…
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.
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Details
AGLC
Baines v R [2016] NSWCCA 132
Case
[2016] NSWCCA 132
Decision Date
CaseChat Overview and Summary
The appellant, Baines, sought leave to appeal against the sentences imposed by the sentencing judge, arguing that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia. The appellant was convicted of multiple offences, including assault and dangerous driving, and sentenced to imprisonment. The appellant contended that the sentencing judge erred in assessing the objective seriousness of each offence and in not taking into account the summary disposition of the offences.
The court considered whether the sentencing judge erred in assessing the objective seriousness of the offences and in not accounting for the summary disposition of the offences. The court noted that the sentencing judge had considered the objective seriousness of the offences and had appropriately weighed the surrounding circumstances. The court found that the sentencing judge had not erred in assessing the objective seriousness of the offences or in not accounting for the summary disposition of the offences. The court also noted that the distinction between sentencing for uncharged acts and taking account of surrounding circumstances was relevant but did not affect the outcome of the appeal.
The appeal was dismissed. The court found that the sentences imposed were not manifestly excessive and that the sentencing judge had appropriately considered the relevant factors in determining the appropriate sentence. The court held that the appellant had not demonstrated that the sentencing judge had erred in a way that warranted leave to appeal.