Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Bussey v R [2020] NSWCCA 280 Hearing dates: 21 October 2020 Date of orders: 16 November 2020 Decision date: 16 November 2020 Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Bellew J at [112]Decision: (1) Grant leave to appeal against conviction.
(2) Dismiss the appeal against conviction.
(3) Grant leave to appeal against sentence.
(4) Dismiss the appeal against sentence.
(5) The applicant is to be taken into custody today.
Catchwords: APPEAL – conviction appeal – trial by jury – indecent assault – sexual intercourse without consent – acquittal on Counts 1, 2 and 4 – finding of guilt on Count 3 – conviction appeal – whether verdict of guilty on Count 3 unreasonable due to inconsistency with acquittals on the other counts – where acquittals not necessarily dependent on adverse findings as to complainant’s credibility – where finding of guilt on Count 3 not inconsistent or unreasonable
APPEAL – sentence appeal – whether evidence of a prior intimate relationship is relevant to objective seriousness – where seriousness of offending not mitigated by prior sexual relationship between offender and victim
Legislation Cited: Crimes Act 1900 (NSW) ss 37(2), 61J(1), 61L
Crimes (Sentencing and Procedure) Act 1999 (NSW) s 5
Criminal Appeal Act 1912 (NSW) s 6
Evidence Act 1995 (NSW) s 191
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bellchambers v R [2011] NSWCCA 131
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Hendricks [2011] NSWCCA 203
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
Wiren v R (1996) 89 A Crim R 356
Zreika v R [2012] NSWCCA 33; (2012) 223 A Crim R 460
Category: Principal judgment Parties: Derek David Bussey (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
G Wendler (Applicant)
E Balodis (Respondent)
Monica McKenzie Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2018/343640 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Date of Decision:
- Date of conviction: 24 March 2020
Date of sentence: 7 July 2020- Before:
- Hunt DCJ
- File Number(s):
- 2018/00343640
Judgment
-
HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.…
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- AGLC
- Bussey v The Queen [2020] NSWCCA 280
- Case
- [2020] NSWCCA 280
- Decision Date
CaseChat Overview and Summary
The appeal also addressed the relevance of evidence regarding a prior intimate relationship between the appellant and the complainant in determining the objective seriousness of the offending. The court assessed whether such evidence should have been considered in sentencing. It found that the prior relationship did not mitigate the seriousness of the offences, as the focus should be on the harm caused to the victim and the community, rather than on mitigating circumstances. The appeal was dismissed, affirming both the conviction and the sentence imposed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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