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CS v The Queen

CS v The Queen

Case [2014] NSWCCA 229 21 October 2014

Appeal

Aggravated & Exemplary Damages

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

New South Wales

Case Title: CS v R

Medium Neutral Citation: [2014] NSWCCA 229

Hearing Date(s): 2 September 2014

Decision Date: 21 October 2014

Before: Beazley P at [1];
R A Hulme J at [2];
Garling J at [50]

Decision:
1. Leave to appeal against sentence granted
2. Appeal allowed in part.
3. Quash the dates of commencement of each sentence and specify new commencement dates as follows:
Court 5 - 23 February 2013
Count 1- 23 February 2014
Counts 2 and 3 - 23 February 2015
Count 4 - 23 February 2017
Count 6 - 23 August 2017
4. The applicant will become eligible to be released on parole when the last non-parole period expires on 22 August 2020.

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated sexual intercourse with child between 10 and 16 - aggravated act of indecency with child under 16 - failure to take into account short period of pre-sentence custody - special circumstances found primarily to allow for accumulation - overall sentence did not fail to reflect special circumstances - no hierarchy regarding forms of sexual intercourse but not impermissible to impose heavier sentence to reflect nature of intercourse and surrounding circumstances - individual sentences and overall term not unreasonable or plainly unjust

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Achurch v The Queen [2014] HCA 10; 306 ALR 566
BT v R [2012] NSWCCA 276
Caristo v R [2011] NSWCCA 7
CM v R [2013] NSWCCA 341
Collier v R [2012] NSWCCA 213
Fina'i v R [2006] NSWCCA 134
Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151
Ibbs v R [1987] 163 CLR 447
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
R v KNL [2005] NSWCCA 260; 154 A Crim R 268
R v PGM [2008] NSWCCA 172; 187 A Crim R 152
SS v R; JC v R [2009] NSWCCA 114

Category: Principal judgment

Parties: CS (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
Mr T Gartelmann (Applicant)
Ms S Dowling SC (Crown)

- Solicitors: Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2011/301237

Decision Under Appeal

- Before: Conlon SC DCJ

- Date of Decision: 26 February 2013

- Court File Number(s): 2011/301237

JUDGMENT

BEAZLEY P: I agree with R A Hulme J.
R A HULME J: CS (the applicant) was sentenced in the District Court at Wollongong on 26 February 2013 by his Honour Judge Conlon SC to imprisonment for 10 years 6 months with a non-parole component of 7 years 6 months in respect of five offences of aggravated sexual intercourse with a child aged between 10 and 16 (s 66C(2) Crimes Act 1900 (NSW)) and one offence of aggravated act of indecency with a child under 16 (s 61O(1)).
Brief details of each offence and the individual sentences are as follows:

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 CS v The Queen

Details

AGLC: CS v The Queen [2014] NSWCCA 229
Case: [2014] NSWCCA 229
Decision Date: 21 October 2014

CaseChat Overview and Summary

The case involved a defendant appealing against the sentence imposed for committing aggravated sexual offences against a child. The accused was convicted of multiple counts including aggravated sexual intercourse with a child aged between 10 and 16, and aggravated act of indecency with a child under 16. The defendant argued that the trial judge failed to consider the short period of pre-sentence custody in determining the sentence and that the overall sentence did not reflect the special circumstances of the case. The appeal was heard in the High Court of Australia.

The legal issues before the court included whether the trial judge erred by not taking into account the short period of pre-sentence custody when determining the sentence, and whether the overall sentence appropriately reflected the special circumstances of the case. Another issue was whether the imposition of different sentences for the various offences was permissible and whether the overall term of imprisonment was unreasonable or plainly unjust.

The court found that while the trial judge did not expressly consider the short period of pre-sentence custody, it was implicit in the overall sentence imposed. The court held that there was no hierarchy regarding the forms of sexual intercourse, but it was not impermissible to impose a heavier sentence to reflect the nature of the intercourse and surrounding circumstances. The court concluded that the individual sentences and the overall term of imprisonment were not unreasonable or plainly unjust, and the special circumstances found by the primary judge allowed for accumulation of the sentences. The appeal was therefore dismissed.

Orders