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Corliss v R

Corliss v R

Case [2020] NSWCCA 65 8 April 2020

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Corliss v R [2020] NSWCCA 65
Hearing dates: 14 August 2019
Date of orders: 08 April 2020
Decision date: 08 April 2020
Before: Brereton JA at [1]
Johnson J at [23]
Lonergan J at [105]
Decision:
(1) Leave to appeal is granted
(2) Appeal dismissed

Catchwords: SENTENCING — appeals — appeal against sentence — misapplication of principle — whether sentencing judge failed to assess objective seriousness — whether sentencing judge erred in determining starting point for sequences 6 and 7 — whether sentencing judge erred in failing to give full effect to historical sentencing practices — historical child sexual assault offences — indecent assault — carnal knowledge — construction and application of s 25AA Crimes (Sentencing Procedure) Act 1999 — consideration of interaction between s 25AA and s 6(3) Criminal Appeal Act 1912 — grounds of appeal not made out — appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
AJB v R (2007) 169 A Crim R 32; [2007] NSWCCA 51
AK v R [2016] NSWCCA 238
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bland v R (2014) 241 A Crim R 51; [2014] NSWCCA 82
Bradbury v R [2008] NSWCCA 93
Connell v R [2019] NSWCCA 70
Crump v R [2016] NSWCCA 2
Denham v R [2016] NSWCCA 309
DF v R (2012) 222 A Crim R 178; [2012] NSWCCA 171
Elliott v The Queen (2007) 234 CLR 38; [2007] HCA 51
Featherstone v R [2008] NSWCCA 71
Franklin v R [2019] NSWCCA 325
GRD v R [2009] NSWCCA 149
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hurst v R [2017] NSWCCA 114
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
MC v R (2017) 271 A Crim R 83; [2017] NSWCCA 316
MJL v R [2007] NSWCCA 261
Morton v R [2018] NSWCCA 84
MPB v R (2013) 234 A Crim R 576; [2013] NSWCCA 213
Mulato v R [2016] NSWCCA 282
Muldrock v the Queen (2011) 244 CLR 120; [2011] HCA 39
PB v R [2016] NSWCCA 258
R v Cattell [2019] NSWCCA 297
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534
R v Previtera (1997) 94 A Crim R 76
R v Van Ryn [2016] NSWCCA 1
Radenkovic v The Queen (1990) 170 CLR 623; [1990] HCA 54
RL v R [2018] NSWCCA 274
Roach v R [2019] NSWCCA 160
Sharma v R [2017] NSWCCA 85
Simpson v R [2014] NSWCCA 23
Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247
Vaughan v R [2020] NSWCCA 3
Woodward v R [2017] NSWCCA 44

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 Corliss v R

Details

AGLC: Corliss v R [2020] NSWCCA 65
Case: [2020] NSWCCA 65
Decision Date: 08 April 2020

CaseChat Overview and Summary

In the case of Corliss v R, the appellant sought to appeal against his sentence on the basis that the sentencing judge had misapplied certain legal principles. The dispute centred on the assessment of the objective seriousness of the crimes committed, the determination of the starting point for two sequences of offences, and the application of historical sentencing practices to the offences of indecent assault and carnal knowledge. The appeal was heard in the NSW Court of Criminal Appeal, which had to determine whether the original sentencing judge had erred in these respects.

The court was required to decide whether the sentencing judge had failed to assess the objective seriousness of the crimes, particularly given the historical nature of the offences. It also had to examine whether the sentencing judge had erred in determining the starting point for sequences 6 and 7, and whether the judge had failed to give full effect to historical sentencing practices. Furthermore, the court needed to consider the interaction between section 25AA of the Crimes (Sentencing Procedure) Act 1999 and section 6(3) of the Criminal Appeal Act 1912 in the context of the appeal.

The NSW Court of Criminal Appeal found that the grounds of appeal were not made out. The court held that the sentencing judge had properly assessed the objective seriousness of the crimes and had correctly determined the starting point for the sequences. It also found that there had been no error in the application of historical sentencing practices. The court further concluded that the interaction between the relevant sections of the Acts did not support the appeal. Consequently, the appeal was dismissed.

Orders