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Elwood v R

Elwood v R

Case [2019] NSWCCA 315 20 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Elwood v R [2019] NSWCCA 315
Hearing dates: 8 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Gleeson JA at [1]
Walton J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. The aggregate sentence imposed in the District Court on 6 December 2018 is quashed.
4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 3 years and 2 months comprised of a non-parole period of 1 year and 8 months. The non-parole period commences on 3 August 2018 and will expire on 2 April 2020 with the balance of term expiring on 2 October 2021.

Catchwords: CRIMINAL LAW – sentence appeal – sexual intercourse without consent contrary to s 61I of the Crimes Act – contravene apprehended domestic violence order on s 166 certificate – guilty pleas – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in approach to applicant’s intellectual disability – whether sentencing judge erred by failing to give effect to finding of special circumstances – whether sentence is manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Alkanaan v R [2017] NSWCCA 56
Battersby v R [2018] NSWCCA 141
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CC v R [2019] NSWCCA 229
Canzius v R [2017] NSWCCA 177
Caristo v R [2011] NSWCCA 7
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Doe v R [2013] NSWCCA 248
Hazell v R [2015] NSWCCA 26
Houri v R [2013] NSWCCA 279
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McClelland v R [2019] NSWCCA 59
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Sabongi v R [2015] NSWCCA 25
Category: Principal judgment
Parties: Kyle Elwood (Applicant)
The Crown (Respondent)
Representation:
Counsel:
N Steel (Applicant)
F Veltro (Crown)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/108877
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 December 2018

Before:

Ingram SC DCJ

File Number(s):

2017/108877

Judgment

GLEESON JA: I agree with Fullerton J.
WALTON J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence of 4 years and 6 months with a non-parole period of 3 years imposed by Ingram SC DCJ in the District Court on 6 December 2018.
The statutory ratio of 66.6% between the non-parole period of 3 years and the balance of term of 1 year and…

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 Elwood v R

Details

AGLC: Elwood v R [2019] NSWCCA 315
Case: [2019] NSWCCA 315
Decision Date: 20 December 2019

CaseChat Overview and Summary

The appellant, Elwood, was convicted of sexual intercourse without consent in contravention of section 61I of the Crimes Act and breaching an apprehended domestic violence order. Elwood appealed against the sentence imposed by the Supreme Court of Victoria, arguing that the sentencing judge had erred in assessing the objective seriousness of the offending, in approaching his intellectual disability, and by failing to give effect to the finding of special circumstances. The appeal was heard by the Court of Appeal, which was required to determine whether the sentence was manifestly excessive.

The court considered whether the sentencing judge had erred in the assessment of the objective seriousness of the offending and in the approach to the appellant's intellectual disability. The court found that the sentencing judge had correctly assessed the objective seriousness of the offending, noting the severity of the breach of an apprehended domestic violence order and the impact on the victim. The court also found that the sentencing judge had appropriately considered the appellant's intellectual disability, noting that it was a relevant factor in the sentencing process but did not mitigate the seriousness of the offending. The court further found that the sentencing judge had correctly identified the special circumstances of the case, including the appellant's history of violence and the impact on the victim.

The court concluded that the sentence imposed by the sentencing judge was not manifestly excessive. The court found that the sentence reflected the seriousness of the offending and the need to protect the community, while also taking into account the appellant's intellectual disability. The court noted that the sentence was within the range of sentences typically imposed for similar offences and that there were no grounds for the appeal to be allowed. The appeal was therefore dismissed.

The court did not make any orders.

Orders