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Erazo v R

Erazo v R

Case [2016] NSWCCA 139 15 July 2016

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Erazo v R [2016] NSWCCA 139
Hearing dates: 17 June 2016
Date of orders: 15 July 2016
Decision date: 15 July 2016
Before: Ward JA at [1]
Davies J at [8]
R S Hulme AJ at [77]
Decision:
(1) Extend time for the application for leave to appeal to 21 January, 2016;
(2) Leave to appeal granted;
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence – multiple sexual offences committed by offender against step-daughter – victim aged 12 to 17 years – intercourse resulting in pregnancy – offender arrested but not charged after one incident – continuation of offending - challenges to factual findings by sentencing judge – good character apart from offending – whether such good character could be disregarded - aggregate sentence – whether sentence manifestly excessive – whether offences occurring in family home was an aggravating factor – discussion concerning whether cases holding that commission of offence by family members in the victim’s home is not an aggravating factor should be reconsidered – errors established – sentence not manifestly excessive - no lesser sentence warranted
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Aktar v R [2015] NSWCCA 123
AG v R [2016] NSWCCA 102
DC v State of New South Wales [2010] NSWCA 15
Ingham v R [2011] NSWCCA 88
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Knight v R [2015] NSWCCA 222
Melbom v R [2013] NSWCCA 210
R v Comert [2004] NSWCCA 125
R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v MJB [2014] NSWCCA 195
R v Tuala [2015] NSWCCA 8
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Tweedie v R [2015] NSWCCA 71
Category: Principal judgment
Parties: Elver Antonio Ruiz Erazo (Applicant)
Crown (Respondent)
Representation:
Counsel:
P Little (Applicant)
V Lydiard (Respondent)
Solicitors:
Grays Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/312860
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

09 May 2014

Before:

Williams ADCJ

File Number(s):

2012/312860

Judgment

WARD JA: I have had the advantage of reading in draft Davies J’s reasons, with which I agree.
As to ground 9 of the grounds of appeal, I share the reservation expressed by Davies J as to the restrictiveness of the view expressed by McClellan CJ at CL in Ingham v R [2011] NSWCCA 88 at [112], following the line of authority since R v Comert [2004] NSWCCA 125, as to the lawfulness of the offender on the premises leading to a conclusion that it will not be an aggravating circumstance when a victim is assaulted…

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 Erazo v R

Details

AGLC: Erazo v The Queen [2016] NSWCCA 139
Case: [2016] NSWCCA 139
Decision Date: 15 July 2016

CaseChat Overview and Summary

In Erazo, the appellant challenged his sentence for multiple sexual offences committed against his step-daughter, who was aged between 12 and 17 years at the time. The victim became pregnant as a result of the offending. Although the offender was arrested and charged following one incident, the offending continued. The sentencing judge heard evidence of the offending over a period of five years, which was accepted as correct. The appellant challenged some of the factual findings made by the sentencing judge but these were not upheld. The appellant had a good character apart from the offending. The appellant submitted that his good character should not be disregarded and that the sentence was manifestly excessive. The appellant also argued that the fact that the offending occurred in the family home was not an aggravating factor. The High Court discussed whether cases holding that commission of an offence by family members in the victim’s home is not an aggravating factor should be reconsidered. The Court found that there were errors in the sentencing process but held that the sentence was not manifestly excessive and no lesser sentence was warranted.

The primary legal issue was whether the appellant’s sentence was manifestly excessive, and whether the fact that the offending occurred in the family home was an aggravating factor. The appellant submitted that the good character evidence should not be disregarded and that the offending in the family home was not an aggravating factor. The appellant also argued that the sentencing judge had erred in making certain factual findings. The Court held that there were errors in the sentencing process but that the sentence was not manifestly excessive. The Court also held that the fact that the offending occurred in the family home was not an aggravating factor and that the sentencing judge was correct to make the factual findings that were challenged by the appellant.

The Court found that the sentence was not manifestly excessive and that no lesser sentence was warranted. The Court held that the appellant’s good character evidence should be disregarded because it was relevant to his culpability. The Court also held that the fact that the offending occurred in the family home was not an aggravating factor. The Court noted that there had been previous cases that held that commission of an offence by family members in the victim’s home is not an aggravating factor but that these cases should be reconsidered. The Court held that the sentence was not manifestly excessive and that no lesser sentence was warranted. The Court found that there were errors in the sentencing process but that these did not affect the overall sentence.

The Court dismissed the appeal and affirmed the sentence imposed by the sentencing judge. The Court held that the sentence was not manifestly excessive and that no lesser sentence was warranted. The Court held that the appellant’s good character evidence should be disregarded because it was relevant to his culpability. The Court also held that the fact that the offending occurred in the family home was not an aggravating factor. The Court held that the sentencing judge was correct to make the factual findings that were challenged by the appellant. The Court noted that there had been previous cases that held that commission of an offence by family members in the victim’s home is not an aggravating factor but that these cases should be reconsidered.

Orders