CX v The Queen

[2017] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

CX v The Queen

Citation:

[2017] ACTCA 37

Hearing Date:

1 August 2017

DecisionDate:

1 August 2017

Before:

Murrell CJ, Mossop and Wigney JJ

Decision:

Appeal dismissed.

Catchwords:

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – sexual offences  – historical offences – sexual intercourse with young person – acts of indecency with young person – whether primary judge required to take into account the remissions available to prisoners at the time that the offences occurred – offender’s life expectancy as a mitigating factor under sentence – offender’s ill-health as a mitigating factor under sentence

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 33(1)(m), 35

Crimes Act 1900 (ACT) ss 76, 92E(1), 92K(1), 92K(2)

Cases Cited:

AJB v The Queen [2007] NSWCCA 51; 169 A Crim R 32

Dalton v The Queen [2015] ACTCA 48
GS v The Queen [2016] NSWCCA 266
Hall v The Queen; Barker v The Queen [2017] ACTCA 16
Holyoak v The Queen (1995) 82 A Crim R 502
JT v R [2012] NSWCCA 133
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
MPB v The Queen [2013] NSWCCA 213; 234 A Crim R 576
O’Brien v The Queen [2015] ACTCA 47
R v Smith (1987) 44 SASR 587
R v Walsh [2009] NSWSC 764

ZA v The Queen [2017] NSWCCA 132

Parties:

CX (Appellant)

Crown (Respondent)

Representation:

Counsel

Mr J Sabharwal (Appellant)

Mr J White SC (Respondent)

Solicitors

Sharman Robertson Solicitors (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 48 of 2016

Decision under appeal: 

Court/Tribunal:             ACTSC

Before:  Elkaim J

Date of Decision:         8 November 2016

Case Title:  R v CX (No 2)

Citation: [2016] ACTSC 325

THE COURT:

The appeal

1. The appellant was charged with 16 child sex offences committed between 1973 and 1993.  The victims were the appellant’s daughters, SP and DN, and two sisters who received childcare in the appellant’s home, ST and LT.  Most offences were committed at the appellant’s home when his wife was absent.

1. The appellant pleaded guilty to Counts 1 to 3 on 29 August 2016, the first day of the trial.

1. On 9 September 2016, a jury found him guilty of nine further offences.

1. On 18 October 2016, bail was revoked.

1. On 8 November 2016, Elkaim J (the primary judge) imposed a total sentence of 10 years’ imprisonment from 18 October 2016 to 17 October 2026 and fixed a nonparole period of five years’ imprisonment.

1. The appellant appealed against the sentences on the grounds that:

(a)The sentences for Counts 1, 2, 7, 11 and 12 were manifestly excessive (Ground 1).

(b)The primary judge failed to take into account the remissions available to prisoners at the time that the offences occurred (Ground 2).

(c)The primary judge sentenced on the basis that the appellant’s life expectancy was six to seven years,…