(i) Appeal allowed; (ii) Quash the sentences imposed by Finnane DCJ on the Applicant; (iii) In respect of each of the offences of assault accompanied by an act of indecency, sentence the Applicant to imprisonment for a non-parole period of 2 years commencing on 30 October 2009 together with a further term of 1 year; (iv) In respect of the offence of sexual intercourse without consent, sentence the Applicant to imprisonment for a non-parole period of 3 years commencing on 30 October 2010, together with a further period of 2 years; and (v) Record as the date upon which it appears to the Court that the Applicant shall become eligible for parole, 30 October 2013.
PARTIES:
BT Regina
FILE NUMBER(S):
CCA 2009/5247
COUNSEL:
Applicant: T Gartelmann Respondent: D Arnott SC
SOLICITORS:
Applicant: S O'Connor Respondent: S Kavanagh
LOWER COURT JURISDICTION:
District Court
LOWER COURTJUDICIAL OFFICER:
Finanne DCJ
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200/5247
McCOLL JA RS HULME J LATHAM J
Tuesday, 23 November 2010
BT v R
Judgment
1 McCOLL JA: I agree with RS Hulme J.
2 RS HULME J: On 30 October 2009 this Applicant for leave to appeal was sentenced by Finnane QC DCJ in respect of four charges. The first three alleged that during various periods between 15 March and 1 July 2008 he assaulted and, at the time of each assault, committed an act of indecency upon a girl under the age of 16 years, namely 15 years. The fourth charge was that between 30 April and 1 July 2008 he had sexual intercourse with that girl without her consent, she being then under the age of 16 years, namely 15 years.
3 Finnane DCJ sentenced the Applicant in respect of the first three offences to concurrent terms of imprisonment for 5 years including non-parole periods of 3 years commencing on 30 October 2009 and in respect of the fourth charge to imprisonment for 9 years including a non-parole period of 6 years, both such periods commencing on 30 October 2011. The effective sentence imposed was thus of imprisonment for 11 years including a non-parole period of 8 years.
4 The first three offences constituted a breach of s 61M(1) of the Crimes Act 1900 (NSW) 1900 which, at the relevant time, prescribed a maximum period of imprisonment of 7 years if, so far as is presently relevant, the victim was under the age of 16 or under the authority of the offender.
5 The fourth offence was a breach of s 61J(1) which prescribed a maximum period of imprisonment of 20 years. Circumstances of aggravation listed under s 61J(2) included the victim being under the age of 16, and the victim being under the authority of the offender.
6 Pursuant to s 54A et seq…
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
BT v R [2010] NSWCCA 267
Case
[2010] NSWCCA 267
Decision Date
CaseChat Overview and Summary
BT, the appellant, was convicted in the District Court of several sexual offences against a minor. The respondent appealed against his conviction and sentence. The appeal was heard by McColl JA, Hulme J and Latham J in the New South Wales Court of Criminal Appeal. The appeal was allowed, and the sentences imposed by Finnane DCJ were quashed. The Court found that the sentencing judge had erred in finding that the offences were representative of "many other occasions in which similar offences were committed" and erred in the assessment of the objective seriousness of the offences for the purpose of considering the reasons for departure from the standard non-parole period. The Court found the sentences individually and in their aggregate were manifestly excessive. The Court imposed new sentences of imprisonment for the offences of assault accompanied by an act of indecency, and sexual intercourse without consent. The Court also set the date of eligibility for parole.
The key legal issues in this appeal were whether the sentencing judge erred in finding that the offences were representative of "many other occasions in which similar offences were committed", whether the sentencing judge erred in the assessment of the objective seriousness of the offences for the purpose of considering the reasons for departure from the standard non-parole period, and whether the sentences imposed were manifestly excessive. The Court found that the sentencing judge had erred in both of the first two issues. The Court found that the sentences imposed were manifestly excessive and imposed new sentences for the offences.