CPW v R

Case [2009] NSWCCA 105 23 April 2009

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
CPW v R [2009] NSWCCA 105

FILE NUMBER(S):
2006/5773

HEARING DATE(S):
12 February 2009

JUDGMENT DATE:
23 April 2009

PARTIES:
CPW
Regina

JUDGMENT OF:
McClellan CJatCL James J Adams J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/61/0163

LOWER COURT JUDICIAL OFFICER:
Woods AJ

COUNSEL:
E Wilson - Appellant
J Dwyer - Crown

SOLICITORS:
S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

CATCHWORDS:
CRIMINAL LAW — Sentencing — child sexual assault — multiple offences — some offences committed many years previously — sentencing in accordance with law and practice at the time of the offences — special circumstances by reason of accumulation of sentences

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act
Crimes Act
Criminal Appeal Act
Parole of Prisoners Act 1966
Probation and Parole Act 1983
Sentencing Act 1989

CASES CITED:
AJB v Regina (2007 169 A Crim R 32
Cahyahi v The Queen (2007) 168 A Crim R 41
Close (1993) 65 A Crim R 72
Featherstone v R [2008] NSWCCA 71
GAC v R [2007] NSWCCA 287
MJL v Regina [2007] NSWCCA 261
Pearce v The Queen (1998) 194 CLR 610
R v Ellis (1986) 6 NSWLR 603
R v PLV (2001) 51 NSWLR 736
R v Swan [2005] NSWCCA 252
R v Holder (1983) 3 NSWLR 245
R v MJR (2002) 130 A Crim R 481
R v MMK [2006] NSWCCA 272
Simpson (1992) 61 A Crim R 58

TEXTS CITED:

DECISION:
1.Leave to appeal granted.
2.Appeal against sentence allowed in part.
3.Confirm the sentences for offences 1, 2 and 4.
4.Quash the sentences for offences 3, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and in lieu thereof impose the following sentences:-
For offence 3 — a fixed term of imprisonment of six months commencing on 14 February 2009 and expiring on 13 August 2009.
For offence 8 — a fixed term of imprisonment of 10 months commencing on 14 August 2009 and expiring on 13 June 2010.
For offences 9 and 11 — concurrent fixed terms of imprisonment of 10 months commencing on 14 February 2010 and expiring on 13 December 2010.
For offence 10 — a fixed term of imprisonment of 14 months commencing on 14 August 2010 and expiring on 13 October 2011.
For offence 12 — a fixed term of imprisonment of 14 months commencing on 14 June 2011 and expiring on 13 August 2012.
For offence 13 — a fixed term of imprisonment of 10 months commencing on 14 June 2011 and expiring on 13 April 2012.
For each of offences 6 and 7 — a non-parole period of one year eight months commencing on 14 August 2012 and expiring on 13 April 2014 and a balance of the term of 10 months.
For offence 5 and taking into account the additional offences — a non-parole period of one year commencing 14 August 2013 and expiring on 13 August 2014 and a balance of the term of…

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 CPW v R

Details

AGLC: CPW v R [2009] NSWCCA 105
Case: [2009] NSWCCA 105
Decision Date: 23 April 2009

CaseChat Overview and Summary

The appellant was convicted of a number of sexual offences involving children, including offences committed over twenty years ago. The appellant sought to have the sentence reviewed by the Court of Appeal. The appeal was allowed and the matter was remitted to the sentencing judge. The primary judge had failed to adequately consider the principle of accumulation of sentences in relation to the appellant’s offending. The principle of accumulation of sentences provides that a court must consider the cumulative effect of multiple sentences when sentencing a defendant for multiple offences. The Court of Appeal held that the primary judge should have considered the effect of the appellant’s past offending history, and the sentences imposed for that history, when considering the appropriate sentence for the current offending. The Court of Appeal held that the primary judge had failed to give adequate weight to the principle of accumulation of sentences and this was an error of law. The Court of Appeal remitted the matter to the sentencing judge to re-sentence the appellant.

The legal issue before the Court of Appeal was whether the primary judge had adequately considered the principle of accumulation of sentences. The Court of Appeal held that the principle of accumulation of sentences requires a court to consider the cumulative effect of multiple sentences when sentencing a defendant for multiple offences. The Court of Appeal held that the primary judge had failed to adequately consider the principle of accumulation of sentences when sentencing the appellant. The Court of Appeal held that this was an error of law and remitted the matter to the sentencing judge. The Court of Appeal held that the principle of accumulation of sentences is a well-established principle of sentencing and that it must be considered by a court when sentencing a defendant for multiple offences. The Court of Appeal held that the primary judge had failed to give adequate weight to this principle and this was an error of law. The Court of Appeal held that the matter should be remitted to the sentencing judge to re-sentence the appellant.

Orders