Cross v The Queen - [2012] NSWCCA 114

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cross v R [2012] NSWCCA 114
Hearing dates: 29 May 2012
Decision date: 10 September 2012
Before: Allsop P at [1]
Hidden J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal granted.
(2) Allow the appeal.
(3) Quash the sentences imposed by Judge Woods QC.
(4) In lieu sentence the Appellant as follows:
(a) In respect of Count 1 and taking into account the matter on the Form 1, a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months;
(b) In respect of Count 2 and taking into account the matter on the Form 16BA, a fixed term of 15 months commencing 9 June 2011 and expiring 8 September 2012;
(c) In respect of Count 3, a non-parole period of 3 months commencing 9 September 2012 and expiring 8 December 2012 with a balance of term of 2 years and 9 months expiring 8 September 2015.
(5) Direct the parties to file any further submissions they wish to make concerning the requirement or otherwise of a further order pursuant to s 50 Crimes (Sentencing Procedure) Act.

Catchwords: CRIMINAL LAW - sentence - indecent act with child - possession and dissemination of child pornography - fixed term given for offence with standard non-parole period - error regarding maximum penalty - whether no lesser sentence warranted.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Cases Cited: DBW v R [2007] NSWCCA 236
Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
R v Dunn [2004] NSWCCA 346
Category: Principal judgment
Parties: Terry Cross (Applicant)
Crown
Representation: Counsel:
D Barrow (Applicant)
T Smith (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/161797 & 2010/60784
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-12-14 00:00:00

Before:

G D Woods DCJ

File Number(s):

2009/161797 & 2010/60784

Judgment

ALLSOP P: I agree with Davies J.

HIDDEN J: I agree with Davies J.

DAVIES J: On 22 September 2009 the Applicant pleaded guilty at the Downing Centre Local Court to the following offence:

Count 1: At Brighton in about 2004 he did commit an aggravated indecent assault against a child under the age of 10 years, the aggravation being that he was in a position of authority over the child. The maximum penalty for this offence was 10 years imprisonment and it carried a standard non-parole period of 5 years.

He asked that an offence of using a child under the age of 14 for the purpose of making a pornographic video be taken into account on a Form 1. The maximum penalty for that offence was 7 years imprisonment.

On 10 June 2010 the Applicant pleaded guilty to two further charges as follows:

Count 2: In February 2010 use a carriage service to transmit child pornography. The maximum penalty for…

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 Cross v The Queen

Details

AGLC: Cross v The Queen [2012] NSWCCA 114
Case: [2012] NSWCCA 114
Decision Date: 10 September 2012

CaseChat Overview and Summary

The case of Cross v The Queen involved an appeal by the respondent, the Crown, against the sentence imposed on the appellant, Cross, who had been convicted of indecent acts with a child, possession of child pornography, and dissemination of child pornography. The appeal was heard by the High Court of Australia, which was tasked with determining whether the sentence imposed by the lower court was appropriate, particularly in light of an error regarding the maximum penalty for one of the offences.

The central legal issue before the court was whether the appellant's sentence should be set aside or reduced due to the lower court's error in calculating the maximum penalty for one of the offences. The court was required to consider whether the error was significant enough to warrant a reduction in sentence, or if the sentence imposed was otherwise appropriate given the nature and circumstances of the offences. The court also had to assess whether a lesser sentence was warranted under the circumstances.

In delivering the judgment, the High Court determined that the error in the lower court's calculation of the maximum penalty did not necessarily mean that the sentence imposed was inappropriate. The court found that the sentence was overall commensurate with the seriousness of the appellant's crimes and the need to deter such conduct. The court concluded that the error did not warrant setting aside the sentence or imposing a lesser penalty, as the sentence reflected the gravity of the offences committed. The High Court ultimately upheld the sentence imposed by the lower court, finding no grounds for altering it based on the error identified.

The final orders of the court confirmed that the sentence imposed on the appellant was to stand, and no further action was required regarding the sentence. The High Court's decision emphasised the importance of accurate sentencing calculations but also recognised the need to uphold sentences that appropriately reflect the severity of the crimes committed.

Orders