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
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)
[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.
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Details
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.