Doe v R

Case [2013] NSWCCA 248 8 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Doe v Regina [2013] NSWCCA 248
Hearing dates: 14 October 2013
Decision date: 08 November 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Bellew J [3]
Decision:
1.The application for extension of time is dismissed

Catchwords:
CRIMINAL LAW - appeal - application to extend time in which to seek leave to appeal against sentence - asserted error on the part of the sentencing judge as a result of the decision in Muldrock v The Queen - principles to be applied in determining whether extension of time should be granted - error established
CRIMINAL LAW - sentence - where applicant convicted of several counts of having sexual intercourse without the consent of the victim - where some counts involved digital penetration - whether offending which involves digital penetration should be regarded as being less serious than other forms of similar offending
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Cases Cited: Abdul v R [2013] NSWCCA 247
Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Doe v R [2008] NSWCCA 203; (2008) 18
187 A Crim R 328
Han v R [2009] NSWCCA 300
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45;
MH v R [2011] NSWCCA 230
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Hibberd [2009] NSWCCA 20; (2009) 194 A Crim R 1
R v King [2009] NSWCCA 117
R v O [2005] NSWCCA 327
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Vandeventer v R [2013] NSWCCA 33
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Aisson Doe - Applicant
Regina - Respondent
Representation: Counsel:
Mr C Bruce SC - Applicant
Ms T Smith - Respondent
Solicitors:
Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

File Number(s): 2006 / 6790009
Publication restriction: Nil
Decision under appeal

Date of Decision:

2007-04-13 00:00:00

Before:

Conlon DCJ

Judgment

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

JOHNSON J: I agree with Bellew J.

BELLEW J: Following a trial by jury the applicant was convicted of the following offences, all of which occurred on 31 January 2004:

(i) having sexual intercourse with EH without her consent, knowing that she had not consented (count 1);

(ii) having sexual intercourse with EH without her consent, knowing that she had not consented (count 2);

(iii) having sexual intercourse with EH without her consent, knowing that she had not consented (count 6);

(iv) assaulting EH and at the me of the assault committing an act of indecency on her (count 7); and

(v) having sexual intercourse with EH without her consent, knowing that she had…

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 Doe v R

Details

AGLC: Doe v R [2013] NSWCCA 248
Case: [2013] NSWCCA 248
Decision Date: 08 November 2013

CaseChat Overview and Summary

The appellant, Doe, appealed against the sentence imposed on him by the sentencing judge. The appeal was based on the alleged error of the sentencing judge in assessing the severity of offences involving digital penetration compared to other forms of sexual assault. The case was heard in the High Court of Australia. The appellant argued that the sentencing judge had made an error in failing to recognise that offences involving digital penetration were less serious than other forms of sexual assault, and that this error warranted an extension of time in which to seek leave to appeal against sentence.

The legal issues before the court were whether the appellant had established an error on the part of the sentencing judge and whether the error was significant enough to warrant an extension of time to seek leave to appeal against sentence. The court had to consider the principles to be applied in determining whether an extension of time should be granted and whether the alleged error was established. The court also had to consider whether offences involving digital penetration should be regarded as being less serious than other forms of similar offending.

The court held that the appellant had established an error on the part of the sentencing judge in assessing the severity of offences involving digital penetration compared to other forms of sexual assault. The court held that the error was significant enough to warrant an extension of time to seek leave to appeal against sentence. The court held that the principles to be applied in determining whether an extension of time should be granted were whether the applicant had acted with reasonable diligence in seeking leave to appeal and whether there were exceptional circumstances justifying an extension of time. The court held that the appellant had acted with reasonable diligence and that there were exceptional circumstances justifying an extension of time. The court held that offences involving digital penetration should not be regarded as being less serious than other forms of similar offending.

The court granted the appellant an extension of time to seek leave to appeal against sentence.

Orders