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Essex v R

Essex v R

Case [2013] NSWCCA 11 5 February 2013

Appeal

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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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 1912
Cases 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 44
Category: Sentence
Parties: Trevor Essex - Applicant
Crown - Respondent
Representation: 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…

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 Essex v R

Details

AGLC: Essex v R [2013] NSWCCA 11
Case: [2013] NSWCCA 11
Decision Date: 05 February 2013

CaseChat Overview and Summary

Essex was convicted of aggravated sexual intercourse of a child under 10 years, where the act of intercourse was constituted by the insertion of a hose into the victim's vagina. The victim was aged 3 years at the time of the offence. The case was brought before the High Court of Australia, which heard Essex's appeal against his conviction and sentence. Essex contested the sentence imposed by the sentencing judge, arguing that it was manifestly excessive and that the judge failed to adequately consider certain factors in assessing the objective seriousness of the offence.

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