Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Trevor Essex v R [2013] NSWCCA 11 Hearing dates: 13 November 2012 Decision date: 05 February 2013 Before: McClellan CJ at CL [1]
Rothman J [2]
Bellew J [3]Decision: 1. Leave to appeal granted;
2. Appeal allowed;
3. Quash the sentence imposed in respect of count (4) in the indictment, being the count pursuant to s. 66A(2) of the Crimes Act;
4. In lieu, sentence the applicant in respect of count (4) to a non-parole period of 8 years and 6 months imprisonment, to date from 9 February 2010 and to expire on 8 August 2018, with an additional term of 3 years 6 months imprisonment to date from 9 August 2018 and to expire on 8 February 2022, a total term of imprisonment of 12 years.
Catchwords: APPEAL - criminal law - sexual offences - aggravated sexual intercourse of a child under 10 - intercourse constituted by insertion of hose into victim's vagina - victim aged 3 years at the time - where no evidence of offence being motivated by sexual gratification and no evidence of grooming - errors on the part of the sentencing judge in failing to have regard to such matters assessing objective seriousness of offence - further error on the part of the sentencing judge in concluding that the offending was aggravated because it occurred in the victim's home - sentence manifestly excessive Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912Cases Cited: Aldous v R [2012] NSWCCA 153
Butler v R [2012] NSWCCA 23
EK v R (2010) 208 A Crim R 157
Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at 378
MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Comert [2004] NSWCCA 125
R v Dunn CCANSW 15 April 1992 unreported
R v King [2009] NSWCCA 117
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
R v Humphries [2004] NSWCCA 370
Tapai v R [2009] NSWCCA 246
Williams v R [2012] NSWCCA 172
Zrieka v R [2012] NSWCCA 44Category: Sentence Parties: Trevor Essex - Applicant
Crown - RespondentRepresentation: S Odgers SC and C Feiner - Applicant
J Dwyer - Respondent
Blair Criminal Lawyers - Applicant
S Kavanagh,Solicitor for Public Prosecutions (NSW) - Respondent
File Number(s): 2009/144211 2009/191931 Publication restriction: Nil Decision under appeal
- Date of Decision:
- 2011-08-16 00:00:00
- Before:
- Sorby DCJ
Judgment
McCLELLAN CJ at CL: I agree with Bellew J.
ROTHMAN J: I agree with Bellew J.
BELLEW J: On 16 February 2011 an indictment was presented against the applicant which contained six separate counts. The third of those counts was ultimately discontinued by the Director of Public Prosecutions, leaving the remaining five counts as follows:
(1) between 9 November 2008 and 3 February 2009 at Penshurst in the State of…
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- AGLC
- Essex v R [2013] NSWCCA 11
- Case
- [2013] NSWCCA 11
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the sentencing judge erred in not considering the absence of evidence that the offence was motivated by sexual gratification or that there was any grooming of the victim. Additionally, the court had to determine whether the judge erred in concluding that the offence was aggravated because it occurred in the victim's home. Essex argued that these factors should have been taken into account when assessing the gravity of the offence and that their omission led to an excessive sentence.
The High Court found that the sentencing judge had indeed erred by not taking into account the absence of evidence of sexual motivation or grooming, which were relevant in assessing the objective seriousness of the offence. The court also found that the judge's conclusion that the offence was aggravated by occurring in the victim's home was not supported by the evidence. The Court held that these errors resulted in an overestimation of the seriousness of the offence and led to a sentence that was manifestly excessive. The Court quashed the sentence and ordered a retrial on the question of sentence only.
In light of the errors identified, the Court set aside Essex's sentence and ordered that a new sentencing hearing be conducted, ensuring that the sentencing judge appropriately considered all relevant factors, including the absence of evidence of sexual motivation or grooming, and whether the location of the offence was an aggravating factor.
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
Established by: CLELLAN CJ
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