Culbert v R

Case [2021] NSWCCA 38


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Culbert v R [2021] NSWCCA 38
Hearing dates: 15 February 2021
Decision date: 18 March 2021
Before: Hoeben CJ at CL at [1];
R A Hulme J at [74];
Adamson J at [75]
Decision:

(1)   The non-publication order made by Judge Weber SC in respect of the name of the applicant is revoked.

(2)   Leave to appeal against that part of Ground 1 raising the issue of double counting is refused.

(3)   Otherwise, leave to appeal against sentence is granted.

(4)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – sexual offending against three victims taking place over 18 years – whether sentence manifestly excessive.

CRIMINAL LAW — Appeal against sentence — Aggravating factor per s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 (NSW) — Use of Victim Impact Statements — Whether sentence manifestly excessive

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Corby v R [2010] NSWCCA 146

Corliss v R [2020] NSWCCA 65

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

DS v R [2017] NSWCCA 37

Gagan (a pseudonym) v R [2020] NSWCCA 47

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Marrow v R [2015] NSWCCA 282

Muggleton v R (2015) 250 A Crim R 180; [2015] NSWCCA 62

Obeid v R [2017] 96 NSWLR 155; [2017] NSWCCA 221

Ollis v R [2011] NSWCCA 155

R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469

R v GC [2020] NSWDC 186

R v Isaacs (1997) 41 NSWLR 374

R v Nelson [2016] NSWCCA 130

RvThomas [2007] NSWCCA 269

R v Tuala (2015) 248 A Crim R 502; [2015] NSWCCA 8

R v Wilson [2005] NSWCCA 219

RP v R [2013] NSWCCA 192

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:Principal judgment
Parties: Gary Anthony Culbert – Applicant
Regina – Respondent Crown
Representation:

Counsel:
S Kluss – Applicant
S Traynor – Respondent Crown

Solicitors:
Ross Hill & Associates Solicitors – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s): 2016/324508
Publication restriction: Non-publication of any information or material (with the exception of the applicant's name) that may lead to the identification of the victims (Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

R v GC [2020] NSWDC 186

Date of Decision:

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AGLC
Culbert v R [2021] NSWCCA 38
Case
[2021] NSWCCA 38
Decision Date

CaseChat Overview and Summary

The appellant, Culbert, appealed against his sentence for multiple sexual offences committed over an 18-year period against three victims. The trial judge sentenced Culbert to a total of 18 years' imprisonment, with a non-parole period of 12 years. Culbert's primary contention was that the sentence was manifestly excessive. The central legal issue before the court was whether the sentence imposed was manifestly excessive, taking into account the aggravating factors identified and the use of victim impact statements.

The court examined whether the sentence imposed was manifestly excessive, considering the totality of the circumstances, including the nature and circumstances of the offences, the degree of Culbert's culpability, and the impact on the victims. The court also considered whether the aggravating factor, as outlined in section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), was properly applied. In assessing the use of victim impact statements, the court acknowledged their role in reflecting the harm caused to the victims but emphasised that they should not be the sole determinant of the sentence. The court concluded that while the offences were egregious, the sentence was not manifestly excessive given the circumstances and the need for deterrence and denunciation.

The court held that the sentence was not manifestly excessive, as it appropriately balanced the need for punishment, deterrence, and recognition of the harm caused to the victims. The appeal was dismissed, and the original sentence was upheld. The court further clarified that the use of victim impact statements was a valuable tool in sentencing but should be one of several factors considered in determining the appropriate sentence.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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