Beazley P at [1]; Johnson J at [2]; R A Hulme J at [3]
Decision:
1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:
CRIMINAL LAW – appeal against sentence – range of child sexual assault offences committed against stepdaughter – aggregate sentence – a number of errors alleged concerning specification of indicative sentences – Crown concessions as to some errors alleged including Muldrock error – sentencing discretion – whether some other sentence warranted in law – aggregate sentence imposed within range – appeal dismissed
Counsel: Mr D Carroll (Applicant) Ms M Cinque SC (Crown)
Solicitors: Dignan & Hanrahan Solicitors Solicitor for Public Prosecutions
File Number(s):
2013/110900
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
17 October 2014
Before:
English DCJ
File Number(s):
2013/110900
Judgment
BEAZLEY P: I agree with the reasons of Justice R A Hulme and with the orders he proposes.
JOHNSON J: I agree with the reasons given by Justice R A Hulme that leave to appeal against sentence should be granted but the appeal should be dismissed.
R A HULME J: The applicant was sentenced by her Honour Judge English in the District Court at Penrith on 17 October 2014 in respect of child sexual assault offences to an aggregate term of imprisonment of 22 years with a non-parole period of 16 years with effect from 23 May 2014.
The applicant cannot be identified because doing so would tend to identify his victim. For this reason a pseudonym has been used in the name of this judgment.
Details of the offences and the indicative sentences appear in the following table. All of the offences concerned the applicant's stepdaughter and occurred in a two year period when she was aged 9 to 11. The offences are all contrary to provisions of the Crimes Act 1900 (NSW) and standard non-parole periods pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) applied to some.
Count
Offence
Statutory provisions
Indicative sentence
2011 - Victim aged 9
1
Aggravated indecent assault (kissing on the lips)
s 61M(2)
Max 10 years
SNPP 8 years
1 month
2
Aggravated indecent assault (squeezing bottom)
s 61M(2)
Max 10 years
SNPP 8 years
1 month
3
Aggravated sexual intercourse with…
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
Bravo v R [2015] NSWCCA 302
Case
[2015] NSWCCA 302
Decision Date
CaseChat Overview and Summary
The case involved an appellant, Bravo, who was appealing against his sentence for a range of child sexual assault offences committed against his stepdaughter. The appeal was heard in the High Court of Australia. The nature of the appeal was to challenge the aggregate sentence imposed, alleging several errors in the specification of the indicative sentences for each individual offence.
The legal issues before the court involved the proper application of sentencing principles and whether the trial judge had made errors in calculating the aggregate sentence. The appellant argued that the trial judge had erred in calculating the indicative sentences for the individual offences, particularly in relation to the Muldrock error, and that the aggregate sentence was too severe. The Crown conceded some of the errors but maintained that the aggregate sentence was appropriate.
The court found that while there were indeed some errors in the specification of the indicative sentences, the Crown's concessions addressed some of the issues raised by the appellant. The court also noted that the aggregate sentence imposed was within the range of sentences that could be considered appropriate for the crimes committed. The court held that the trial judge had exercised his sentencing discretion correctly and that no other sentence was warranted in law. Consequently, the appeal was dismissed.
The final orders of the court were to dismiss the appeal against sentence. The aggregate sentence imposed by the trial judge was upheld as being within the appropriate range for the crimes committed.