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 71Category: Principal judgment Parties: Elver Antonio Ruiz Erazo (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
P Little (Applicant)
V Lydiard (Respondent)
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…
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- AGLC
- Erazo v The Queen [2016] NSWCCA 139
- Case
- [2016] NSWCCA 139
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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