Leeming JA at [1]; Hamill J at [62]; Fagan J at [63]
Decision:
1. Grant leave to appeal.
2. Appeal allowed, quash the sentence imposed on 9 October 2014, and in lieu thereof, sentence the offender to an aggregate sentence of 2 years and 4 months commencing 9 October 2014, with a non-parole period of 18 months expiring on 8 April 2016.
3. Direct, in accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, that the offender be released at the end of the non-parole period.
Catchwords:
CRIMINAL LAW - appeal against sentence - offender pleaded guilty to counts of sexual intercourse without consent and indecent assault - grounds of appeal conceded by Crown - whether inferences available to be drawn from statement of agreed facts - relevance of breach of trust by offender - Crown's concessions accepted by Court - offender resentenced
Solicitors: S.E. O’Connor, Legal Aid NSW (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):
2013/371841
Publication Restriction:
Nil
Decision under appeal:
Court or Tribunal:
District Court of New South Wales
Date of Decision:
9 October 2014
Before:
Wilson SC DCJ
File Number(s):
2013/371841
JUDGMENT
LEEMING JA: Matthew Cowling pleaded guilty to one count of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent contrary to s 61I of the Act. Following a short hearing before the primary judge on 3 October 2014, her Honour imposed, on 9 October 2014, an aggregate sentence of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 5 months commencing on that day, a sentence…
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 Cowling v R
Sign in free to access the full text
Details
AGLC
Cowling v R [2015] NSWCCA 213
Case
[2015] NSWCCA 213
Decision Date
CaseChat Overview and Summary
In the case of Cowling v R, the appellant was convicted of several counts of sexual intercourse without consent and indecent assault. The appeal was against the sentence imposed by the lower court. The appellant had pleaded guilty to the charges, and the Crown conceded certain grounds of appeal. The central issue before the court was to determine whether the inferences available from the statement of agreed facts could be drawn in light of the offender's breach of trust and the concessions made by the Crown. The court was required to assess the relevance of the breach of trust in the sentencing process.
The court considered the concessions made by the Crown and the agreed statement of facts. It concluded that the inferences available from the agreed statement of facts were indeed relevant to the sentencing process, particularly in light of the breach of trust by the offender. The court accepted the Crown's concessions and found that the breach of trust was a significant factor that needed to be considered when determining the appropriate sentence. The court ultimately resentenced the offender, taking into account the agreed statement of facts and the breach of trust.
Consequently, the court resentenced the appellant, acknowledging the Crown's concessions and the relevance of the breach of trust. The sentence imposed by the lower court was deemed inappropriate in light of the circumstances. The court's decision reflected a balanced approach, considering the agreed statement of facts, the breach of trust, and the concessions made by the Crown. The appellant's appeal against the sentence was, therefore, allowed, and the court imposed a new sentence that better reflected the nature and circumstances of the offences committed.