Hoeben CJ at CL at [1] Harrison J at [49] R A Hulme J at [50]
Decision:
The sentence imposed by the District Court on applicant on 5 March 2014 is quashed.
In lieu thereof, applicant sentenced to imprisonment with a non-parole period of 1 year, commencing 5 March 2014 and expiring 4 March 2015, with a balance of term of 1 year expiring 4 March 2016.
Applicant to be released to parole on the expiration of the parole period.
Catchwords:
CRIMINAL LAW – sentence appeal – aggravated sexual intercourse with a child under 10 years – whether too much weight given to Victim Impact Statement – harm asserted in statement well beyond that which might ordinarily be expected – unusual facts – no sexual motivation – applicant affected by mental disability – assistance to authorities – genuine remorse – sentence manifestly excessive – need to re-sentence.
Counsel: T Molomby SC – Applicant K McKay – Respondent Crown
Solicitors: Elizabeth Fleming & Associates – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2013/63057
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
5 March 2014
Before:
Wells DCJ
File Number(s):
2013/63057
Judgment
HOEBEN CJ at CL:
Offences and sentence
The applicant entered a plea of guilty in the Lismore District Court for the following offence:
Aggravated sexual intercourse with a child under 10 years of age and under his authority, contrary to s66A(2) of the Crimes Act 1900.
This offence has a maximum penalty of imprisonment for life and a standard non-parole period of 15 years.
On 4 March 2014 the applicant was sentenced to imprisonment with a non-parole period of 2 years and 6 months commencing 5 March 2014 and expiring 4 September 2016 with a balance of term of 2 years and 6 months expiring 5 March 2019.
The applicant seeks leave to appeal from that sentence on the following grounds:
Ground 1 – The sentencing judge erred in giving too much weight to the Victim Impact Statement.
Ground 2 – The sentencing judge erred in giving inadequate weight to the assistance provided to the police by the applicant in the circumstances of the case.
Ground 3 – The…
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.
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Details
AGLC
EG v R [2015] NSWCCA 21
Case
[2015] NSWCCA 21
Decision Date
CaseChat Overview and Summary
The case of EG v R involves an appeal by the applicant against a sentence imposed by the Supreme Court of Victoria. The applicant was found guilty of aggravated sexual intercourse with a child under the age of ten years. The primary issue before the court was whether the trial judge had given undue weight to the Victim Impact Statement in determining the sentence. The applicant argued that the harm asserted in the statement was significantly beyond what might ordinarily be expected and that the trial judge failed to adequately consider the unusual facts of the case, including the applicant's mental disability, lack of sexual motivation, assistance to authorities, and genuine remorse.
The court examined the role of Victim Impact Statements in sentencing, noting that while such statements are important, they must not overshadow the offender's personal circumstances and the need for proportionality in sentencing. The court considered the exceptional nature of the case, including the absence of sexual motivation and the applicant's cooperation with authorities and display of remorse. The court concluded that the trial judge had indeed placed too much emphasis on the Victim Impact Statement and had not sufficiently balanced it with the mitigating factors present in the applicant's case.
The High Court allowed the appeal, finding the sentence to be manifestly excessive. The court held that the trial judge's approach to sentencing did not adequately reflect the unique aspects of the case, leading to a sentence that was disproportionate to the circumstances. As a result, the matter was remitted to the Supreme Court of Victoria for re-sentencing. The court emphasised the need for a balanced and proportionate approach in sentencing, ensuring that all relevant factors, both aggravating and mitigating, are given appropriate consideration.