Leeming JA at [1] Johnson J at [2] Rothman J at [183]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.
Catchwords:
APPEAL – application for leave to appeal against sentence – plea of guilty to one count of persistent sexual abuse of a child contrary to s.66EA Crimes Act 1900 – s.66EA offence comprising 12 separate ingredient offences under s.66C(3) Crimes Act 1900 committed in 2006 and 2007 – sentence of imprisonment for 10 years and 9 months with non-parole period of 7 years – general observations concerning sentencing for s.66EA offences – consideration of factors relevant to sentencing for s.66EA offences – whether sentencing Judge erred in taking into account that the Applicant was in a position of authority over the victim – error not established – whether the sentencing Judge erred in failing to assess the objective seriousness of the s.66EA offence or alternatively failed to consider the nature of the ingredient offences when considering the objective seriousness of the s.66EA offence – error not established – whether sentence manifestly excessive – limited utility of sentencing statistics for s.66EA offences – applicant’s s.66EA offence of considerable objective gravity – harm to victim from offence – held sentence not manifestly excessive – leave to appeal against sentence granted – appeal against sentence dismissed
[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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AGLC
Burr v R [2020] NSWCCA 282
Case
[2020] NSWCCA 282
Decision Date
CaseChat Overview and Summary
The appeal in Burr v R concerns the applicant's application for leave to appeal against the sentence imposed on him following a guilty plea to one count of persistent sexual abuse of a child, in violation of section 66EA of the Crimes Act 1900. The case was heard in the NSW Court of Criminal Appeal. The applicant's offence consisted of 12 separate incidents occurring in 2006 and 2007, with the sentencing Judge imposing a total sentence of 10 years and 9 months imprisonment, with a non-parole period of 7 years. The applicant contested the sentence's severity, arguing that the Judge had erred in considering certain factors and failing to adequately assess the objective seriousness of the offence.
The primary legal issues addressed by the Court were whether the sentencing Judge had erred in taking into account the applicant's position of authority over the victim and whether the Judge had failed to properly assess the objective seriousness of the s.66EA offence or the nature of the ingredient offences. The Court also considered whether the sentence was manifestly excessive. In evaluating these issues, the Court examined the principles of sentencing for s.66EA offences and the relevant factors that the sentencing Judge should have considered. The Court found that the Judge had not erred in considering the applicant's position of authority or in assessing the objective seriousness of the offence, and that the sentence was not manifestly excessive.
The Court of Criminal Appeal held that the applicant's offence was of considerable objective gravity, given the harm caused to the victim. The Court acknowledged the limited utility of sentencing statistics for s.66EA offences but determined that the sentence imposed was appropriate in the circumstances. Consequently, the Court granted the applicant leave to appeal against the sentence but dismissed the appeal. This outcome reflects the Court's view that the sentence was proportionate to the gravity of the offence and the harm caused to the victim.