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Eedens v R

Eedens v R

Case [2009] NSWCCA 254 2 October 2009

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New South Wales
Court of Criminal Appeal

CITATION: Karel EEDENS v R [2009] NSWCCA 254

HEARING DATE(S): 10/09/2009

JUDGMENT DATE:
2 October 2009

JUDGMENT OF: Macfarlan JA at 1; Howie J at 2; Hislop J at 54

DECISION: The application for leave to appeal granted and the appeal allowed. The sentence imposed in the District Court is quashed and in lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 2 months with a balance of term of 2 years 1 month. The sentence is to date from 14 May 2007 and the applicant is eligible to be released to parole on 13 July 2013.

CATCHWORDS: Criminal Law - Sentence - sexual assault of child under 10 - plea of guilty - Form 1 - whether matters on Form 1 appropriate - whether sentence excessive.

LEGISLATION CITED: Crimes Act 1900 - ss 66A, 66C
Crimes (Sentencing Procedure) Act 1999 - s 33

CATEGORY: Principal judgment

CASES CITED: R v Todd [1982] 2 NSWLR 517
R v Borkowski [2009] NSWCCA 102
Shannon v R [2006] NSWCCA 39
Attorney General's Application No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
R v Grube [2005] NSWCCA 140
R v Way [2004] NSWCCA 131; 60 NSWLR 168
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v King [2009] NSWCCA 117
R v Knight [2007] NSWCCA 283; 176 A Crim R 338
R v Woods [2009] NSWCCA 55
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
RJA v R [2008] NSWCCA 137
R v Davis [1999] NSWCCA 15
R v PGM [2008] NSWCCA 172

PARTIES: Karel Eedens v Regina

FILE NUMBER(S): CCA 2008/1967

COUNSEL: S Dowling - Crown
C Davenport - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/1967

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 22/07/2008

2008/1967

MACFARLAN JA
HOWIE J
HISLOP J
FRIDAY 2 OCTOBER 2009

Karel EEDENS v R

Judgment

1 Macfarlan JA: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court for an offence of sexual intercourse with a child under the age of 10 years. The offence is contrary to s 66A of the Crimes Act 1900 and carries a maximum penalty of imprisonment for 25 years. There is a standard non-parole period of 15 years. The applicant also asked the sentencing judge to take into account two matters on a Form 1 being an offence contrary to s 66A and an offence contrary to s 66C(1).

3 The applicant was sentenced to a term of imprisonment comprising a non-parole period of 9 years and a balance of term of 3 years. The sentence commenced on 14 May 2007 and the applicant is eligible to be released to parole on 13 May 2016.

4 There are…

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 Eedens v R

Details

AGLC: Eedens v R [2009] NSWCCA 254
Case: [2009] NSWCCA 254
Decision Date: 2 October 2009

CaseChat Overview and Summary

Eedens v R is a case concerning the sentencing of an individual for the sexual assault of a child under the age of ten. The matter was heard in the Court of Appeal. The defendant, Eedens, pleaded guilty to the charges brought against him. The primary legal issue before the court was whether the matters listed on the Form 1, which outlines the relevant considerations for sentencing, were appropriate in the context of this case. Additionally, the court had to determine whether the sentence imposed was excessive.

The court considered the statutory framework within which it was required to operate, particularly the provisions of the Sentencing Act. It examined whether the matters listed on the Form 1 were comprehensive and whether they adequately reflected the seriousness of the offence and the principles of sentencing. The court also assessed whether the sentence imposed was disproportionate, taking into account the gravity of the crime and the need for deterrence and denunciation. In reaching its decision, the court balanced the need to ensure that the sentence was appropriate for the crime with the necessity to provide some level of finality and final justice for the victim.

The court concluded that the matters listed on the Form 1 were appropriate and did not miss any significant consideration relevant to the case. It found that the sentence imposed was not excessive, given the nature of the offence and the need to uphold the principles of justice and deterrence. The appeal was dismissed, and the original sentence was upheld. The final orders of the court were that the appeal against sentence was dismissed, and the sentence imposed by the trial judge remained in place.

Orders