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Flaherty v R; R v Flaherty

Flaherty v R; R v Flaherty

Case [2016] NSWCCA 188 24 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Flaherty v R; R v Flaherty [2016] NSWCCA 188
Hearing dates: 13 July 2016
Date of orders: 24 August 2016
Decision date: 24 August 2016
Before: Hoeben CJ at CL at [1]
Simpson JA at [31]
Price J at [121]
Decision:
(1) Appeal against conviction dismissed.
(2) Crown appeal dismissed.
(3) Leave granted to the appellant to appeal against sentence.
(4) Appeal allowed.
(5) In lieu of the sentence imposed in the District Court, the appellant is sentenced to an aggregate term of imprisonment for 2 years, commencing on 24 August 2016, with a non-parole period of 3 months, to expire on 23 November 2016.
(6) Direct that the appellant be released on parole at the expiration of the non-parole period.

Catchwords:
CRIMINAL LAW – conviction appeal – historic sexual offence – indecent assault on male – whether error in summing up – whether onus of proof reversed – no error disclosed – conviction appeal dismissed

CRIMINAL LAW – application for leave to appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5(1)(c), s 6(3) – pleas of guilty to three of five offences – whether sentencing judge failed to apply sentencing practices of the time offences committed – whether sentencing judge had adequate regard to appellant’s age, ill health and delay – grounds of appeal do not disclose error

CRIMINAL LAW – Crown sentence appeal – Criminal Appeal Act 1912 (NSW), s 5D – whether sentencing judge engaged in two-stage approach – whether sentencing judge made finding of special circumstances on matters already taken into account –– whether sentencing judge erred by determining that sentences for two offences be served concurrently – whether sentencing judge failed to have regard to general deterrence – whether sentence manifestly inadequate – three grounds of appeal disclose error

CRIMINAL LAW – Crown sentence appeal – residual discretion to dismiss Crown appeal – Bugmy v The Queen [2013] HCA 37; 249 CLR 571 – impugned sentence within range – Crown appeal dismissed
CRIMINAL LAW – sentencing – Kentwell v The Queen [2014] HCA 37; 252 CLR 601 – error of principle identified by Crown – whether error can be used to advantage of appellant – application of Kentwell to sentencing affected by error of principle regardless of who identifies error – Crown’s duty of fairness – obligation of Crown to draw error to attention of court or offender – integrity of criminal justice system – where error established, role of appellate court is not to assess effect of error – role of appellate court to recommence sentencing process – leave to appeal granted – appellant’s appeal allowed – appellant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW) - s 81
Crimes (Sentencing Procedure) Act 1999 (NSW) - ss 44(1), 53A, 76
Criminal Appeal Act 1912 (NSW) - ss 5(1)(c), 5D, 6(3)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Gett v Tabet [2009]…

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 Flaherty v R; R v Flaherty

Details

AGLC: Flaherty v R; R v Flaherty [2016] NSWCCA 188
Case: [2016] NSWCCA 188
Decision Date: 24 August 2016

CaseChat Overview and Summary

Flaherty appealed against his conviction and sentence for historic sexual offences against a male. The Court of Criminal Appeal was tasked with determining whether there were any errors in the summing up by the trial judge, whether the onus of proof was reversed, and whether the sentence was manifestly inadequate. Additionally, the Crown appealed the sentence, arguing that the sentencing judge failed to properly consider the sentencing practices of the time the offences were committed, the appellant’s age, ill health, and the delay in prosecution. The Court also considered whether the sentencing judge erred by determining that the sentences for two offences be served concurrently and whether the sentence failed to have regard to general deterrence.

The Court found no error in the summing up by the trial judge and concluded that the onus of proof was not reversed. The court dismissed the conviction appeal. Regarding the sentence, the Court found that while there were some errors in the sentencing process, they did not warrant an appeal. The Court found that the sentencing judge did not fail to apply the sentencing practices of the time the offences were committed, did not fail to have adequate regard to the appellant’s age, ill health, and delay. However, the Court found that the sentencing judge erred by determining that the sentences for two offences be served concurrently and by failing to have regard to general deterrence. Despite these errors, the Court found that the sentence was not manifestly inadequate.

The Court of Criminal Appeal dismissed the Crown's appeal and granted the appellant leave to appeal against the sentence. The Court found that the impugned sentence was within the range and that the residual discretion to dismiss the Crown appeal applied. The Court applied the principles from Bugmy v The Queen and Kentwell v The Queen to determine that the role of the appellate court was to recommence the sentencing process. The Court allowed the appellant’s appeal and re-sentenced the appellant.

Orders