EJDG v R

Case [2012] NSWCCA 251 30 November 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: EJDG v R [2012] NSWCCA 251
Hearing dates: 5 November 2012
Decision date: 30 November 2012
Before: McClellan CJ at CL at [1]
Latham J at [34]
Fullerton J at [35]
Decision:
1. Grant leave to appeal.
2. Dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal - sentence - misstatement of correct maximum penalty - error in applying standard non-parole period - whether some other sentence was warranted at law - no lesser sentence warranted - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act
Cases Cited: Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Newton v R [2009] NSWCCA 128
R v Ivimy [2008] NSWCCA 25
R v Way [2004] NSWCCA 168; (2004) 60 NSWLR 168
R v Zakaria [2002] NSWCCA 450
Smith v R [2007] NSWCCA 138
Category: Principal judgment
Parties: EJDG (Applicant)
Crown
Representation: Counsel:
D Barrow (Applicant)
N Adams SC/J Dandson (Crown)
Solicitors:
Legal Aid of NSW (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2010/136596
Decision under appeal

Date of Decision:

2011-07-21 00:00:00

Before:

Johnstone DCJ

File Number(s):

2010/136596

Judgment

McCLELLAN CJ at CL: The applicant was tried for three offences contrary to s 61M(1) of the NSW Crimes Act 1900. Count 1 alleged that he assaulted RC between 1 May 2003 and 1 September 2003 and that at the time of the assault committed an act of indecency on RC in circumstances of aggravation, namely that RC was under his authority. Count 2 was pleaded in similar terms and was alleged to have been committed between 1 July 2003 and 4 April 2004. Count 3, in respect of which the applicant was acquitted, was alleged to have been committed some five years after the time in which count 2 was alleged to have occurred.

RC was the applicant's step-daughter. At the relevant time she was ten years of age.

The maximum penalty for each of counts 1 and 2 is seven years imprisonment. There is a standard non-parole period of five years in respect of the offence.

The applicant was sentenced as follows:

Count 1: a non-parole period of 3 years imprisonment dating from 3 May 2011 with an additional term of 2 years dating from 3 May 2014.

Count 2: a non-parole period of 2 years six months dating from 3 August 2011 with an additional period of 18 months dating from 3 February 2014. Accordingly the total sentence was comprised of a non-parole period of 3 years with a further term of 2 years.

Accordingly, the sentence for count 2 was made wholly concurrent with the sentence for count 1.

The sentencing judge made factual findings.

The victim's mother, who had formed a relationship with the offender some years previously, moved into…

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 EJDG v R

Details

AGLC: EJDG v R [2012] NSWCCA 251
Case: [2012] NSWCCA 251
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case involved an appeal by the defendant against their conviction and sentence. The defendant was found guilty of certain criminal charges and was sentenced by the court. The appeal centred around the sentence imposed, specifically a misstatement of the correct maximum penalty and an error in calculating the standard non-parole period. The defendant argued that the misstatement and error warranted a different sentence, and the appeal was heard in the higher court.

The legal issues in the case revolved around whether the errors in the sentence amounted to a miscarriage of justice. The defendant contended that the misstatement of the maximum penalty and the incorrect application of the standard non-parole period were significant errors that required the court to impose a different sentence. The prosecution maintained that the errors were not substantial enough to warrant a different sentence and that the original sentence was appropriate given the circumstances of the case.

The court examined the errors in the sentence and considered whether they were significant enough to warrant a different sentence. The court found that while there were errors in the sentence, they did not amount to a miscarriage of justice. The court concluded that the original sentence was appropriate and that no other sentence was warranted at law. The appeal was dismissed, and the original sentence was upheld. The court emphasised that while errors in sentencing are not ideal, they do not necessarily lead to a different outcome if the sentence is otherwise appropriate.

Orders