Macfarlan JA at [1] Johnson J at [2] Wright J at [82]
Decision:
1. Grant leave to appeal against sentence. 2. Appeal against sentence dismissed.
Catchwords:
CRIMINAL LAW – leave to appeal against sentence – two offences of sexual assault against stepdaughter – whether sentencing Judge erred by double counting statutory aggravating features when considering objective seriousness of one offence – no error demonstrated in approach taken by sentencing Judge – complaint of manifest excess – no useful range established by reference to previous cases – sentence was substantial but not unreasonable or plainly unjust – appeal dismissed
Patrick Carroll (a pseudonym) (Applicant) Regina (Respondent)
Representation:
Counsel: Mr P Gow (Applicant) Mr D Patch (Respondent)
Solicitors: Robertson Saxton Osborne (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2016/299235
Publication restriction:
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Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:
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Date of Decision:
29 March 2018
Before:
O’Rourke SC DCJ
File Number(s):
2016/299235
Judgment
MACFARLAN JA: I agree with Johnson J.
JOHNSON J: The Applicant, Patrick Carroll, seeks leave to appeal with respect to an aggregate sentence imposed at the Parramatta District Court on 29 March 2018 for offences of sexual assault against his stepdaughter. A pseudonym is used to describe the Applicant as publication of his correct name would tend to identify the victim who is entitled to protection against identification under s.578A Crimes Act 1900.
The Offences, Aggregate Sentence and Indicative Sentences
Following pleas of guilty, the Applicant was sentenced by her Honour Judge O’Rourke SC to an aggregate sentence of imprisonment for 12 years comprising a non-parole period of eight years commencing on 7 October 2016 and expiring on 6 October 2024 with a balance of term of four years commencing on 7 October 2024 and expiring on 6 October 2028.
Her Honour nominated the following indicative sentences:
for an offence of aggravated sexual intercourse (under authority) with a…
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
Carroll v The Queen [2019] NSWCCA 243
Case
[2019] NSWCCA 243
Decision Date
CaseChat Overview and Summary
The appellant, Carroll, appealed against his sentence for two offences of sexual assault against his stepdaughter. The Court of Appeal of the Supreme Court of Queensland heard the appeal and considered whether the sentencing judge erred in his approach to sentencing by potentially double counting statutory aggravating factors. The appeal hinged on whether the sentence imposed was manifestly excessive and whether the sentencing judge had adequately considered the appropriate range of sentences for similar offences. The appeal was dismissed by the Court of Appeal.
The primary legal issue before the Court of Appeal was whether the sentencing judge erred in his approach to sentencing by potentially double counting statutory aggravating factors when considering the objective seriousness of one of the offences. This was a significant issue because the proper consideration of aggravating factors is crucial in determining the appropriate sentence for an offender. The Court of Appeal also needed to consider whether the sentence imposed was manifestly excessive and whether the sentencing judge had adequately established a useful range of sentences by reference to previous cases.
The Court of Appeal found that the sentencing judge did not err in his approach to sentencing by potentially double counting statutory aggravating factors. The Court held that the sentence imposed, while substantial, was not unreasonable or plainly unjust. The Court of Appeal noted that the sentencing judge had adequately considered the appropriate range of sentences for similar offences and had given appropriate weight to the statutory aggravating factors. The Court of Appeal held that the appellant had not demonstrated any error in the approach taken by the sentencing judge and dismissed the appeal.
The Court of Appeal dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The Court of Appeal found that the sentence imposed was not manifestly excessive and that the sentencing judge had adequately considered the appropriate range of sentences for similar offences. The Court of Appeal held that the appellant had not demonstrated any error in the approach taken by the sentencing judge and dismissed the appeal.