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Currie v R

Currie v R

Case [2013] NSWCCA 267 12 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Currie v R [2013] NSWCCA 267
Hearing dates: 14 October 2013
Decision date: 12 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Bellew J at [100]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in August 2008 - Applicant convicted after trial of two counts of aggravated sexual intercourse without consent (s.61J Crimes Act 1900) and one count of indecent assault (s.61L Crimes Act 1900) - s.61J offences subject to a standard non-parole period - sole ground of appeal asserted Muldrock error - relevant considerations for grant of extension of time - Muldrock error conceded by Crown - whether lesser sentence warranted in law - extensive criminal history including prior sexual assault offences - offences committed in breach of conditional liberty - Applicant with deprived early background and later stable and supportive marriage - relevance of Applicant's mental condition to sentence - Applicant sentenced subsequently to entirely concurrent terms of imprisonment for unrelated offences - held no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Abdul v R [2013] NSWCCA 247
ASP v R [2007] NSWSC 339
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Neal v The Queen [1982] HCA 55; 149 CLR 305
Porter v R [2008] NSWCCA 145
R v Currie (Court of Criminal Appeal, 31 October 1997)
R v Fernando (1992) 76 A Crim R 58
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Speechley [2012] NSWCCA 130; 221 A Crim R 175
R v Wright (1997) 93 A Crim R 48
Texts Cited: ---
Category: Principal judgment
Parties: Desmond Jeffrey Currie (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms RW Burgess (Applicant)
Ms TL Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/7834
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2008-08-29 00:00:00

Before:

His Honour Judge Black QC

File Number(s):

2007/7834; 2007/10972

Judgment

HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes.

JOHNSON J: The Applicant, Desmond Jeffrey Currie, seeks an extension of time to apply for leave to appeal against sentences imposed in the District Court on 29 August 2008. After trial, the Applicant was convicted and sentenced with respect to two counts of aggravated sexual intercourse without consent under s.61J Crimes Act 1900 and one count of indecent assault under s.61L Crimes Act 1900.

The maximum penalty under s.61J is imprisonment for 20…

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 Currie v R

Details

AGLC: Currie v R [2013] NSWCCA 267
Case: [2013] NSWCCA 267
Decision Date: 12 November 2013

CaseChat Overview and Summary

The case of Currie v R involved an appeal against sentence, specifically an application for an extension of time to appeal. The applicant was sentenced in August 2008 after being convicted of two counts of aggravated sexual intercourse without consent and one count of indecent assault. These offences carry a standard non-parole period under the Crimes Act 1900. The sole ground for the appeal was based on a Muldrock error, where the trial judge failed to consider whether a lesser sentence was warranted in law.

The court was required to determine whether the application for an extension of time to appeal should be granted. The Crown conceded that a Muldrock error had occurred, but the court had to consider whether the applicant had sufficient prospects of success in the appeal. Factors considered included the applicant's extensive criminal history, which included prior sexual assault offences, and the fact that the current offences were committed while the applicant was on conditional liberty. The applicant's deprived early background and later stable and supportive marriage were also taken into account, as was the relevance of the applicant's mental condition to the sentence. The applicant was subsequently sentenced to entirely concurrent terms of imprisonment for unrelated offences.

The court held that no lesser sentence was warranted in law. The applicant's criminal history and the nature of the offences were significant factors in determining the sentence. The court found that the applicant did not have sufficient prospects of success on appeal. Consequently, the application for an extension of time to appeal was refused. The court's decision emphasised the importance of considering all relevant factors in determining the appropriate sentence and the prospects of success in an appeal.

Orders