Flaherty v R; R v Flaherty

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.