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Croxon v R

Croxon v R

Case [2017] NSWCCA 213 6 September 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Croxon v R [2017] NSWCCA 213
Hearing dates: 28 August 2017
Date of orders: 06 September 2017
Decision date: 06 September 2017
Before: Hoeben CJ at CL at [1]
Davies J at [2]
Bellew J at [3]
Decision:
(1)   Leave to appeal is granted.

(2)   The appeal is allowed.

(3)   The sentences imposed by Acting Judge Delaney in the District Court on 19 August 2016 are set aside.

(4)   In lieu thereof, the applicant is sentenced as follows:

(i)   in respect of count 1, a non-parole period of 2 years imprisonment to date from 26 February 2015 and to expire on 25 February 2017, with an additional term of 8 months imprisonment to expire on 25 October 2017;

(ii)   in respect of count 2, a non-parole period of 4 years imprisonment to date from 26 August 2015 and to expire on 25 August 2019, with an additional term of 1 year and 5 months imprisonment to expire on 25 January 2021.
(5)   The applicant will be eligible for release on parole on 25 August 2019.
Catchwords:
CRIMINAL LAW – Appeal – Appeal against sentence – Where applicant pleaded guilty to two counts of sexual offending committed on a pupil whilst he was a school teacher – Where sentencing judge wholly accumulated the two sentences – Where the aggregate sentence imposed reflected a failure on the part of the sentencing judge to have proper regard to considerations of totality – Sentence manifestly excessive – Applicant re-sentenced
PRACTICE AND PROCEDURE – Criminal law – Observations as to the inappropriate use of a Form 1 by the Crown
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: AG v R [2016] NSWCCA 102
Cahyadi v R [2007] NSWCCA 1
DG v R [2017] NSWCCA 139
Doe v R [2013] NSWCCA 248
Ewen v R [2015] NSWCCA 117
FB v R [2014] NSWCCA 282
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Kertai v R [2013] NSWCCA 252
MLP v R [2014] NSWCCA 183
R v AJP [2004] NSWCCA 434
R v Egan [2016] NSWCCA 285
R v Gavel [2014] NSWCCA 56
R v Holder (1983) 3 NSWLR 245
R v MNK [2006] NSWCCA 272
R v King [2009] NSWCCA 117
Category: Principal judgment
Parties: David Reginald Croxon – Applicant
Regina – Respondent
Representation:
Counsel:
S Kluss – Applicant
E Balodis – Respondent
Solicitors:
SJT Law – Applicant
C Hyland, Solicitor for Public Prosecutions – Respondent

File Number(s): 2015/61282
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 August 2016

Before:

Acting Judge Delaney

Judgment

HOEBEN CJ AT CL: I agree with Bellew J.
DAVIES J: I agree with Bellew J.
BELLEW J: On 21 March 2016 an indictment was presented against David Reginald Croxon (“the applicant”) containing the following counts:

On 12…

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 Croxon v R

Details

AGLC: Croxon v R [2017] NSWCCA 213
Case: [2017] NSWCCA 213
Decision Date: 06 September 2017

CaseChat Overview and Summary

The applicant in this case, Croxon, had pleaded guilty to two counts of sexual offending against a pupil during his time as a school teacher. The case was heard in the High Court of Australia, where Croxon appealed against his sentence. The sentencing judge had decided to wholly accumulate the sentences for the two offences, resulting in an aggregate sentence that appeared to reflect a failure to properly consider the principle of totality. This principle requires that the total punishment should not be disproportionate to the gravity of the offences and the offender. The applicant argued that the aggregate sentence was manifestly excessive.

The legal issues before the court included whether the sentencing judge had properly applied the principle of totality and whether the aggregate sentence was manifestly excessive. The court also considered whether the use of a Form 1 by the Crown was appropriate in this instance. A Form 1 is a document used in criminal proceedings to record the particulars of an offence, and its use can be contentious when it comes to the severity of the sentence.

The court found that the sentencing judge had not adequately considered the principle of totality, resulting in a manifestly excessive sentence. The court re-sentenced the applicant, taking into account the need for the sentence to reflect the seriousness of the offending while also adhering to the principle of totality. Additionally, the court made observations regarding the inappropriate use of a Form 1 by the Crown in this case, suggesting that such use should be reconsidered in light of the severity of the sentence imposed.

In conclusion, the High Court allowed the appeal against sentence and re-sentenced the applicant. The court emphasised the importance of properly considering the principle of totality when imposing sentences, particularly in cases involving multiple offences. The court also highlighted the need for caution when using a Form 1 in criminal proceedings, especially when the resulting sentence may be deemed excessive.

Orders