Bray v R

Case [2018] NSWCCA 301 20 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bray v R [2018] NSWCCA 301
Hearing dates: 21 November 2018
Decision date: 20 December 2018
Before: Macfarlan JA at [1];
Rothman J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence dismissed.

Catchwords: CRIME – sentence appeal – aggravated indecent assault of children – criticism of assessment of objective seriousness of offences – discussion of degree of precision required – no error in finding special circumstances and reducing non-parole period by six months – aggregate sentence not manifestly excessive – unhelpful reliance upon comparative cases and statistics – contradictory reasoning in Scales v R [2017] NSWCCA 293 disqualifies it as useful comparator
Legislation Cited: Crimes Act 1900 (NSW) s 61M(2)
Crimes (Administration of Sentences) Act 1999 (NSW) s 128C
Crimes (Administration of Sentences) Regulation 1999 (NSW) r 214A
Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B)
Cases Cited: Chaloner v R [2018] NSWCCA 59
Corby v R [2010] NSWCCA 146
Dawson v R [2013] NSWCCA 61
EG v R [2015] NSWCCA 21
EJDG v R [2012] NSWCCA 251
GSH v R; R v GSH [2009] NSWCCA 214
Gumbleton v R [2017] NSWCCA 314
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Knight v R [2015] NSWCCA 222
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Rampe v R [2018] NSWCCA 163
Regina v AEM Snr; Regina v KEM; Regina v MM [2002] NSWCCA 58
Scales v R [2017] NSWCCA 293
WC v R [2015] NSWCC 52
Why v R [2017] NSWCCA 101
Wray v R [2014] NSWCCA 166
Category: Principal judgment
Parties: Shane Bray (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr T Game SC with Mr J Brock (Applicant)
Ms M England (Crown)
Solicitors:
Hammond Nguyen Turnbull
Solicitor for Public Prosecutions

File Number(s): 2015/344639
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

28 July 2017

Before:

Noman SC DCJ

File Number(s):

2015/344639

Judgment

MACFARLAN JA: I agree with R A Hulme J.
ROTHMAN J: I agree with R A Hulme J.
R A HULME J: Mr Shane Bray applies for leave to appeal in respect of a sentence imposed in the District Court on 28 July 2017. The sentencing followed a jury trial in which the applicant was found guilty of five offences and not guilty of three.
The five offences were of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act 1900 (NSW) which provides for a maximum penalty of imprisonment for 10 years. Pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) there is also prescribed a standard non-parole period of 8 years. [1]
1. It is obviously anomalous to have a standard non-parole period that is 80% of the maximum penalty. The courts and the Sentencing Council have drawn attention to this for years;…

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 Bray v R

Details

AGLC: Bray v The Queen [2018] NSWCCA 301
Case: [2018] NSWCCA 301
Decision Date: 20 December 2018

CaseChat Overview and Summary

The appellant, Bray, appealed against his conviction and sentence for multiple counts of aggravated indecent assault of children. The appeal was heard in the New South Wales Court of Criminal Appeal. Bray challenged the trial judge's assessment of the objective seriousness of his offences and the degree of precision required in such assessments. He also argued that the aggregate sentence was manifestly excessive and that the trial judge should have considered comparative cases and statistics more thoroughly.

The court considered whether the trial judge erred in assessing the objective seriousness of the offences and the degree of precision required. The court concluded that the trial judge's assessment was not in error, as it was based on a comprehensive understanding of the facts and circumstances of the case. The court also found that the trial judge appropriately considered the special circumstances of the case and reduced the non-parole period by six months. The court noted that the aggregate sentence was not manifestly excessive and that the reliance on comparative cases and statistics was unhelpful and contradictory. The court further found that the reasoning in Scales v R [2017] NSWCCA 293 was contradictory and therefore not a useful comparator.

The appeal was ultimately dismissed, and the original sentence was upheld. The court found no error in the trial judge's assessment of the objective seriousness of the offences or in the degree of precision required. The court also found that the trial judge appropriately considered the special circumstances of the case and reduced the non-parole period by six months. The aggregate sentence was not manifestly excessive, and the reliance on comparative cases and statistics was unhelpful. The contradictory reasoning in Scales v R [2017] NSWCCA 293 disqualified it as a useful comparator. The appeal was therefore dismissed, and the original sentence was upheld.

Orders