CC v The Queen - [2019] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CC v R [2019] NSWCCA 230
Hearing dates: 11 September 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Before: Payne JA at [1]
Fullerton J at [2]
Bellew J at [34]
Decision:
1. Extend the time for the filing of the notice of application for leave to appeal to 20 June 2019.
2. Leave to appeal is refused.

Catchwords: CRIMINAL LAW – sentence appeal – six counts of sexual assault with a child – victim is applicant’s brother – whether aggregate sentence was manifestly excessive
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: CC v R [2019] NSWCCA 229
Category: Principal judgment
Parties: CC (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
B Baker (Crown)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/251163
Publication restriction: Non-publication order on the names of the applicant and the complainant
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

2 March 2018

Before:

Huggett DCJ

File Number(s):

2015/251163

Judgment

PAYNE JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 5 years with a non-parole period of 2 years and 9 months imposed by Huggett DCJ on 2 March 2018 following a trial in which the applicant was convicted by the jury of six counts of sexual assault with a child, in each case his younger brother.
The application for leave to appeal is brought out of time, requiring a grant of leave under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW). The applicant filed a Notice of Intention to Appeal on 15 March 2018. On 20 June 2019, he filed a further Notice of Application for Leave to Appeal out of time which accompanied the filing of the Notice of Appeal, grounds of appeal and counsel’s submissions.
No evidence was filed in advance of the hearing of the appeal to support the grant of leave to extend time, a matter that was drawn to the attention of the applicant’s counsel by the Court. Counsel did not apparently appreciate that the appeal was filed out of time. The Court granted leave to file by 4pm the following day such evidence as the applicant relied upon in support of the grant of leave to extend time.
On 13 September 2019, an affidavit from Ross Hill, solicitor, was filed and served on the Crown. Mr Hill annexed email correspondence with the Registry following the filing of an All Grounds Notice of Intention to Appeal on 15 March 2018. On 12 September 2018, a request for an extension of time was sought and granted to 14 December 2018. On 28 December 2018, a request for a further extension of time to 14 February 2019 was sought and granted on the stated basis that the materials in relation to the…

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 CC v The Queen

Details

AGLC: CC v The Queen [2019] NSWCCA 230
Case: [2019] NSWCCA 230
Decision Date: 19 December 2019

CaseChat Overview and Summary

The appellant was convicted of six counts of sexual assault involving a child, the victim being his brother. The appellant sought to appeal against the sentence on the basis that it was manifestly excessive. The appeal was heard in the High Court of Australia. The central issue before the court was whether the aggregate sentence imposed was manifestly excessive, taking into account all relevant mitigating and aggravating factors. The court was required to weigh the severity of the crimes, the appellant's character and background, the impact on the victim, and any other relevant considerations.

The court examined the principles governing the assessment of manifestly excessive sentences, referencing previous case law. It considered the cumulative effect of the six counts of sexual assault, the appellant's previous criminal history, and the need for deterrence and denunciation. The court also weighed the appellant's remorse and the impact of the crimes on the victim, who is the appellant's brother. After a thorough analysis, the court concluded that while the crimes were serious, the sentence was not manifestly excessive given the totality of the circumstances. The court found that the sentence appropriately balanced the need for punishment, deterrence, and rehabilitation.

The appeal was dismissed, and the original sentence was upheld. The court's decision emphasised the importance of considering all relevant factors in determining the appropriateness of a sentence. The court's ruling provides guidance on the application of the manifestly excessive sentence doctrine in similar cases involving multiple counts of serious sexual offences.

Orders