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Eacott (a pseudonym) v R

Eacott (a pseudonym) v R

Case [2019] NSWCCA 158 17 July 2019

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Eacott (a pseudonym) v R [2019] NSWCCA 158
Hearing dates: 3 April 2019
Decision date: 17 July 2019
Before: Leeming JA at [1];
Ierace J at [38];
Hidden AJ at [39]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.
Catchwords: CRIME – criminal appeals – appeal against sentence – persistent sexual abuse of a child – whether sentence manifestly excessive – objective seriousness below mid range – unusual facts – very strong subjective case – notional starting point 8 years imprisonment – sentence of six years with non-parole period of 3 years 6 months – sentence not manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Crimes Act 1900 (NSW), ss 66EA, 578A
Cases Cited: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
Mills v Regina [2017] NSWCCA 87
R v Fitzgerald (2004) 59 NSWLR 493; [2004] NSWCCA 5
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Eacott (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
H Roberts (Respondent)
Solicitors:
R Hill (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/390103
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 April 2018

Before:

His Honour Judge Hanley SC

File Number(s):

2016/390013

Judgment

LEEMING JA: The applicant, who cannot be given his real name by reason of s 578A of the Crimes Act 1900 (NSW), pleaded guilty to a single charge of persistent sexual abuse of a child, contrary to s 66EA of the Crimes Act. The child was his natural daughter, who throughout the time of the events in question was aged between 6 and 10. The applicant was born in 1951 and was aged between 56 and 61 when the offences occurred.
Section 66EA(1) took the following form throughout the entirety of the duration of the offending conduct (from 2008 until January 2013):

“A person who, on 3 or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.”

More recently, s 66EA has been amended, reducing the number of occasions required to establish the offence, and increasing the maximum sentence to life imprisonment.
The sentence imposed upon the applicant was for imprisonment for a period of 6 years, with a non-parole period of 3 years and 6 months. The total sentence included a reduction of 25% based on the offender’s plea, so that the undiscounted starting point was 8 years. The non-parole period (which is a full year shorter than the 4½ years otherwise required by s 44(2) of the Crimes (Sentencing Procedure)…

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 Eacott (a pseudonym) v R

Details

AGLC: Eacott (a pseudonym) v The Queen [2019] NSWCCA 158
Case: [2019] NSWCCA 158
Decision Date: 17 July 2019

CaseChat Overview and Summary

In the case of Eacott v R, the appellant, referred to as Eacott, sought to appeal against the sentence imposed on him for his involvement in persistent sexual abuse of a child. The appeal was heard by the High Court of Australia, which reviewed the sentence to determine if it was manifestly excessive. The respondent, the Crown, argued that the sentence was appropriate given the circumstances of the case.

The legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive, considering the objective seriousness of the offence, which was below the mid-range, and the presence of unusual facts that constituted a very strong subjective case. The court was required to consider whether the sentence of six years imprisonment, with a non-parole period of three years and six months, was appropriate in light of these factors.

The court held that the sentence was not manifestly excessive. It noted that the notional starting point for the offence was eight years imprisonment. Despite the objective seriousness being below the mid-range and the presence of unusual facts, the court found that the sentence was within the range that could be considered appropriate. The court took into account the specific circumstances of the case, including the appellant's role and the impact of the abuse on the victim. The court concluded that the sentence reflected a balanced approach, taking into account both the objective and subjective elements of the case.

The High Court dismissed the appeal, affirming the sentence imposed by the lower court. The final orders confirmed that the sentence of six years imprisonment, with a non-parole period of three years and six months, was appropriate and not manifestly excessive.

Orders